Miss Kentucky USA v. The Madam
Colton Givens, KLJ Legal News Editor[1]
A University of Louisville student’s lawsuit seeks to disgorge a self-described Louisville “Escort Queen” of the profits she has gained from sales of her controversial bestselling book, Breaking Cardinal Rules. But does her complaint state a plausible claim?Kyle Hornback is a University of Louisville sophomore who was recently crowned Miss Kentucky USA.[2] Hornback’s name first entered the public eye, however, in the fall of 2015, when she filed suit against Katina Powell, author of Breaking Cardinal Rules.[3] Powell’s book, published last October, alleges that a former University of Louisville men’s basketball player and graduate assistant coach, Andre McGee, arranged with Powell to provide dancers and prostitutes to UofL basketball players, recruits, and recruits’ parents.[4]According to Powell, she took multiple women to more than twenty “parties,” where the women would dance and have sex with members of the men’s basketball team and the team’s recruits.[5] Some of these parties allegedly occurred in Billy Minardi Hall, the UofL basketball dormitory, and involved three of Powell’s own daughters.[6] Powell says that McGee paid her a total of $10,000.00 for the parties, in addition to extra cash provided by McGee to throw at the dancers and for the sexual acts performed after the dancing.[7] The book was published by IBJ Book Publishing, an offshoot of the Indiana Business Journal.[8]The NCAA is currently investigating the allegations, and the University has hired its own independent investigator to look into the matter.[9] On February 5, 2016, University of Louisville President James Ramsey announced that the men’s basketball program would voluntarily sit out of the ACC and NCAA postseason tournaments as a self-imposed penalty for NCAA violations stemming from the Katina Powell scandal.[10] However, an interesting wrinkle in the situation occurred on October 22, 2015, when UofL sophomore Kyle Hornback filed suit against Powell and IBJ Book Publishing.[11] In her complaint, filed by Louisville attorney Nader Shunnarah, Hornback alleged that by writing about the prostitution activity occurring within the UofL basketball program, Powell damaged the value of Hornback’s education at the University.[12]Specifically, Hornback claimed that Powell’s actions caused her to suffer “loss, harm, and damage including . . . her degree, her ability to repay student loans, and her ability to find employment after graduation . . . .”[13] Against Powell, Hornback brought claims of violation of Kentucky’s criminal statutes prohibiting prostitution, intentional interference with a contract, intentional interference with economic relations, and civil conspiracy.[14] Hornback also sought an injunction against IBJ Book Publishing, requiring it to pay all profits from the book to the Jefferson County Circuit Court Receiver’s Office,[15] and requested that her suit be certified as a class action including all current University of Louisville students.[16]Subsequently, Hornback filed an amended complaint on November 9, 2015, adding three additional UofL student plaintiffs.[17] Each of these plaintiffs and Hornback now maintains three claims against Powell: (1) violation of Kentucky’s criminal prohibition against prostitution; (2) intentional interference with a contract; and (3) intentional infliction of emotional distress/outrage.[18] Additionally, five women named in Powell’s book have joined the suit, claiming that they have been defamed by being referred to as prostitutes, when they in fact provided only dances to the Louisville players and recruits.[19]The claims brought by Hornback and her University of Louisville classmates present interesting issues of law involving tort law, private rights of action, and the First Amendment. Let’s look at these claims one-by-one.First, Hornback and the other student plaintiffs claim a private right of action based upon KRS 529.020 and KRS 529.040, Kentucky’s criminal prohibitions against prostitution.[20] These are criminal statutes that do not authorize a civil recovery, so the plaintiffs also point to KRS 446.070, which states that “[a] person injured by a violation of any statute may recover from the offender such damages as he sustained by reason of the violation[.]”[21] However, there are no Kentucky cases that purport to allow a private right of action based upon violation of Kentucky’s prostitution laws.Even if the trial court allows this incredibly novel claim to proceed, the plaintiffs must still prove that by engaging in prostitution, Powell injured the plaintiffs. But how could a group of University of Louisville students be harmed by the illicit activities of Powell, her associates, and the Louisville basketball team? Hornback and her co-plaintiffs allege that “Katina Powell’s violations of KRS 529.020 and KRS 529.040, puts [sic] the health of the entire student body at risk” by exposing them to the transmission of HIV, even though there is no allegation that Powell and her associates were HIV positive.[22] Simply put, this argument is untenable. If the plaintiff’s argument is extended to its logical conclusion, any person who engages in prostitution with a college student would be subject to suit by any member of the student body. The potential for liability is endless.Second, the student plaintiffs claim that Powell intentionally interfered with their contract with the University of Louisville. According to the lawsuit, University of Louisville students have a contract with the University “whereby for and in consideration of tuition, the University of Louisville will provide an education necessary to obtain employment in the Plaintiff’s comparative field of study, a degree in her field of study, and a degree that would allow Plaintiff to pay off any of her student loans.”[23] Furthermore, the Amended Complaint states that, as part of the aforementioned contract, the University has a code of conduct that requires its employees to behave responsibly and ethically.[24] Hornback claims that Powell’s intentional conduct caused the University to breach its code of conduct, and thus its contract with students; this, in turn, damaged the reputation of the school and the value of the students’ degrees.[25]Intentional interference with a contractual relationship is recognized under Kentucky law, which follows the Restatement formulation of the tort: “One who intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.”[26] The Kentucky Court of Appeals has clarified the definition of improper interference, saying that it requires a showing of malice, “in the sense of lack of justification for the interference . . . .”[27] Additionally, “[i]t is a defense if the alleged interferer has acted in good faith to protect a legitimate interest of his own.”[28]Once again, Hornback has a steep hill to climb in order to recover under this theory. First, she must prove that the contract she describes between herself and the University actually exists. While there is undoubtedly some sort of contractual relationship, Hornback overstates the University’s guarantees to her. It is hard to imagine that any public university would guarantee to its students that, upon receiving a degree, they would certainly find employment in their preferred field, and that such employment would allow them to pay their student loans. If this were the case, then every University of Louisville student who graduates with a bachelor’s degree, but is currently in default on their student loans, could sue the University for breach of contract.Even assuming that the University owes something to Hornback beyond the degree itself, she must still prove that Powell (1) knew of the contract, (2) intended to cause its breach, and (3) actually caused its breach. Stated otherwise, the plaintiffs must show that by providing dancers and prostitutes to University of Louisville men’s basketball players, Powell intended to cause the University to breach its contracts with its individual students. However, Powell has never claimed that her actions were targeted at harming the University, its reputation, or its students. Rather, Powell says she provided women to the basketball team in order to allow them to sign prominent recruits, and thus be more successful; assuming that a winning basketball team enhances the University’s reputation, one could argue (albeit somewhat perversely) that Powell’s intent was actually to enhance the University’s reputation in a roundabout fashion.Next, Hornback must prove that the contract breach resulted in damages. Hornback is seeking a degree in political science,[29] so she would need to establish that the athletic department’s scandal caused her degree to be less valuable in the job marketplace. While this could theoretically be established, in reality, such a task would undoubtedly be difficult at best. The plaintiffs would need expert testimony establishing the value of a Louisville political science degree both before and after the scandal, and would need to show how any decline in value would impact the plaintiffs specifically. For instance, if Hornback is a high-achieving student, any decline in value would presumably impact her less than the average political science student. Another complicating factor is the fact that Hornback is a current student, not yet in the job market, so there is no guarantee as of yet that she will ever be in the job market with a Louisville political science degree. Suffice it to say that many courts would cast a skeptical eye upon these speculative damages claims.The last element Hornback must establish is that Powell’s conduct was not privileged or justified. At the risk of sounding repetitive, Hornback has another significant obstacle to overcome here as well, an obstacle no less formidable than the First Amendment. While it is unclear where Kentucky courts stand on this issue, other state courts using the Restatement definition of intentional interference with a contract have held that mere communication of truthful material is not actionable.[30] And while the truthfulness of Powell’s claims is still publicly uncertain, Louisville’s self-imposed ban from postseason play operates as a tacit admission that at least a substantial portion of the illicit activity described in Breaking Cardinal Rules actually occurred.Finally, Hornback claims that she and the other students were intentionally subjected to emotional distress by Powell’s book, known in Kentucky as the tort of outrage. To succeed on this claim, the plaintiffs must prove that Powell’s “extreme and outrageous conduct intentionally or recklessly caus[ed] [the plaintiffs’] severe emotional distress[.]”[31] The key element here is the mens rea requirement; the plaintiffs must prove not only that the defendants engaged in outrageous conduct, but also that they directed that conduct specifically towards the plaintiffs.[32] Taking the plaintiffs at their word, Hornback and the other students may very well have suffered emotional harm because of Katina Powell’s exploits. But this alone is not enough. The plaintiffs have not alleged that Powell engaged in prostitution with the Louisville basketball team with the specific design to harm the University of Louisville student body, or with a reckless disregard of their susceptibility to emotional distress, as is necessary to succeed on this intentional infliction of emotional distress claim. In the absence of this evidence, this claim must also fail.Kyle Hornback and her fellow University of Louisville students will almost certainly never recover any substantial sum of money from Katina Powell. Their claims for intentional interference with a contract and intentional infliction of emotional distress cannot be proved by the evidence available in this case, and their claims under KRS Chapter 529 are conjured out of whole cloth. Of course, it’s also possible that the goal of this suit was never to recover damages, but instead to shift focus away from the University of Louisville men’s basketball team, and onto Katina Powell’s wrongful conduct. Hornback herself has publicly stated that the purpose of her suit “is solely to prevent a criminal from profiting off of their [sic] crimes.”[33]Honorable as such a goal might be, there could be potential unintended consequences. First, Kentucky law provides for sanctions against both attorneys and clients for violation of the good faith pleading requirement.[34] Even if Hornback and her attorney aren’t sanctioned, this suit could lead to more trouble for the University. Kentucky Rule of Civil Procedure 19.01 allows a defendant to bring another party into the suit when “in [the party’s] absence complete relief cannot be accorded among those already parties[.]”[35] Under this provision, Powell could implead the University and various members of the athletics department, saying that their wrongful conduct was the real cause of any damages Hornback and her co-plaintiffs might have suffered. If Powell could successfully get the University into the case, and the suit survives an initial motion to dismiss, discovery would then ensue. So far, the findings of Louisville’s internal investigation into the scandal have been kept confidential, but the discovery process could open these findings up to the general public, bringing the University and its athletic department under further scrutiny. And given the salacious details of the Katina Powell scandal that have emerged thus far, further scrutiny seems to be the last thing the University of Louisville needs.[1] J.D. expected May 2016.[2] Miss Louisville crowned Miss Kentucky USA, WDRB (Feb. 01, 2016, 8:35 AM), http://www.wdrb.com/story/31105702/miss-louisville-crowned-miss-kentucky-usa.[3] WHAS Staff, UofL student files lawsuit against “Breaking Cardinal Rules” author, WHAS (Oct. 22, 2015, 5:11 PM) http://www.whas11.com/story/news/local/2015/10/22/uofl-student-files-lawsuit-against-breaking-cardinal-rules-author/74406132/.[4] WKYT News Staff, ‘Breaking Cardinal Rules’ hits top of Amazon bestseller lists, WKYT (Oct. 04, 2015, 9:28 AM) http://www.wkyt.com/home/headlines/Breaking-Cardinal-Rules-hits-top-of-Amazon-bestseller-lists-330597391.html.[5] The fallout from ‘Breaking Cardinal Rules’, WAVE (Oct. 20, 2015, 8:42 AM) http://www.wave3.com/story/30183209/a-whirlwind-weekend-for-uofl-basketball.[6] Id.[7] Id.[8] WKYT News Staff, ‘Breaking Cardinal Rules’ hits top of Amazon bestseller lists, WKYT (Oct. 04, 2015, 9:28 AM) http://www.wkyt.com/home/headlines/Breaking-Cardinal-Rules-hits-top-of-Amazon-bestseller-lists-330597391.html.[9] Id.[10] Jeff Greer, U of L imposing postseason hoops ban, Courier-Journal (Feb. 5, 2016, 11:34 PM) http://www.courier-journal.com/story/sports/college/louisville/2016/02/05/sources-u-l-imposing-postseason-hoops-ban/79878760/.[11] WHAS Staff, UofL student files lawsuit against “Breaking Cardinal Rules” author, WHAS (Oct. 22, 2015, 5:11 PM) http://www.whas11.com/story/news/local/2015/10/22/uofl-student-files-lawsuit-against-breaking-cardinal-rules-author/74406132/.[12] See generally Complaint, Hornback v. Powell et al., No. 15-CI-005391 (Jefferson Co., Ky. Cir. Oct. 22, 2015) (hereinafter “Complaint”).[13] Complaint at ¶ 12.[14] Complaint at ¶¶ 10-24.[15] Complaint at ¶ 9.[16] Complaint at ¶ 25-33.[17] See generally Amended Complaint, Hornback et al. v. Powell et al., No. 15-CI-005391 (Jefferson Co., Ky. Cir. Nov. 9, 2015) (hereinafter “Amended Complaint”).[18] See id.[19] See id.[20] Id. at ¶¶ 20-26.[21] Ky. Rev. Stat. Ann. 446.070 (West 2016).[22] Amended Complaint at ¶ 25.[23] Id. at ¶ 27.[24] Id. at ¶ 28.[25] Id. at ¶ 29.[26] Restatement (Second) of Torts § 766 (1979).[27] Bourbon Co. Joint Planning Comm’n. v. Simpson, 799 S.W.2d 42, 45 (Ky. Ct. App. 1990).[28] Id.[29] Fallon Glick, More U of L students, alumni seeking to join lawsuit against ‘Breaking Cardinal Rules’ author, WDRB (Oct. 23, 2015, 6:10 PM) http://www.wdrb.com/story/30337544/more-u-of-l-students-alumni-seeking-to-join-lawsuit-against-breaking-cardinal-rules-author.[30] See, e.g., Walnut St. Assoc., Inc. v. Brokerage Concepts, Inc., 620 Pa. 371, 20 A.3d 468 (Pa. 2011) (giving of truthful information cannot support a claim for tortious interference with contractual relations).[31] Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984) (citing Restatement (Second) of Torts § 46).[32] David J. Liebson, 13 Ky. Prac. Tort Law § 5:3 (2015 ed).[33] Fallon Glick, More U of L students, alumni seeking to join lawsuit against ‘Breaking Cardinal Rules’ author, WDRB (Oct. 23, 2015, 6:10 PM) http://www.wdrb.com/story/30337544/more-u-of-l-students-alumni-seeking-to-join-lawsuit-against-breaking-cardinal-rules-author.[34] Ky. R. Civ. Pro. 11 (West 2016).[35] Ky. R. Civ. Pro. 19.01 (West 2016).*Featured image by Kevin Coles, licensed under CC BY 2.0.