The Monte Carlo Story: Maxim sues former employees for defamation
Earlier this week, Maxim filed a lawsuit against former employees Jason Feifer and Wayne Gross for defamation and breach of contract, accusing them of serving as sources for a controversial Dec. 2 New York Post column about the magazine's December cover shoot in Monte Carlo.
The 20-page complaint, filed on Jan. 4, is an amended version of one the magazine first filed against Gross on Dec. 10. The original complaint only named Gross as a defendant, with Maxim's lawyers arguing that, "upon information and belief," he was source for the Post article.
Gross, a former Maxim fashion director, and his lawyer, Cameron Stracher, have repeatedly denied that Gross ever spoke to the Post. In late December, Feifer, who had served as deputy editor, contacted Maxim through his own attorney to admit that it was he — not Gross — who had talked to the Post.
Stracher told POLITICO that he expected Maxim to drop the suit against Gross at that point, once they realized that they had essentially sued the wrong former employee. But that's not what happened.
On Dec. 22, Maxim's lawyers filed a sealed lawsuit and a restraining order against both Feifer and his attorney. Then on Jan. 4, they amended the suit against Gross to add Feifer as a defendant — accusing both of them of facilitating the leak of to the Post.
The photoshoot at the center of the case took place in July in Monte Carlo. Sardar Biglari — the owner and soon-to-be editor in chief of Maxim — had asked world-famous French fashion photographer Gilles Bensimon to shoot the model Alessandra Ambrosio for the cover of the December issue, volunteering his own hotel suite in Monte Carlo for the shoot. The photos that ran in the December issue of Maxim included photos of Ambrosio in Biglari's suite and on a boat. In one of the photos, a double-page spread, Ambrosio perches on a balcony railing outside the suite while Biglari sits at a table nearby and smokes a cigar.
Nearly five months later, when the December issue was on newsstands, New York Post media reporter Keith Kelly published a Dec. 2 column about the shoot with the title "Maxim owner was really creepy toward Alessandra Ambrosio during shoot." Kelly cited a Maxim "insider," who said that Ambrosio "was creeped out by Biglari, who hung around the set" and only agreed to the photo with Biglari after she was assured that it wouldn't run in the magazine.
On Dec. 8, the Post revised the article, removing that quote and changing the headline, without any notice. (The Post has not changed other columns from Kelly quoting Maxim insiders telling him similar stories; in a Sept. 1 column, Kelly quoted a former insider who said that "there is a level of creepiness to [Biglari] that is off-putting" and in an Oct. 22 column, he quoted an insider who said that Biglari "wants the old Maxim back so he can meet the girls in the edit." We've reached out to Kelly but he did not immediately respond; we'll update this article if he does.)
And since the Post column was scrubbed, Gross has signed an affidavit stating that Biglari behaved professionally during the shoot; Feifer has said that he, rather than Gross, was the Post's source; and now Bensimon, the photographer, has told POLITICO Media that it was his idea, not Biglari’s, to have Biglari in the shoot.
The decision had nothing to do with Biglari's ownership of the magazine, Bensimon said. He just wanted a man to accompany Ambrosio in one of the photos.
"I look and I need a man on this picture because I don’t want the picture to be just her. It’s a double-page and I want to tell a story about the girl in Monte Carlo ... we would need somebody to show Monte Carlo, luxury," he said.
Since he was pressed for time, he just went with the "good-looking" Biglari, who happened to be nearby, having volunteered his own hotel suite as the setting for the photoshoot.
"In the morning, I realize I have to find somebody. We don’t have time to book a men’s model. We had a very short time to shoot in the hotel because we have the boat in the afternoon, and I want to shoot on the boat, of course," he said.
Ambrosio did not even know that Biglari was the owner of Maxim when she posed with him, he added.
Bensimon, who has been in the business for decades and is the former international creative director and head photographer for Elle, seemed almost offended by the idea that Biglari could just muscle his way onto the set and insist on a photo with Ambrosio.
"When I work, I’m very independent," he said. "When I’m out here, I shoot the way I decide to shoot. I shoot the way I like."
He said that Ambrosio, whom he's worked with in the past, seemed comfortable throughout the shoot and would have told him if she objected to any part of it.
"I explained what kind of shoot I was doing, like I always do, and if she would not agree, she would tell me right away. ... I mean, she’s very comfortable with herself. She’s comfortable with what she’s doing. She would tell me right away [if she were not comfortable]. That’s the most important thing," he said.
He was also skeptical of the narrative that Biglari just bought the magazine so he could meet models and be photographed next to them. The fashion world just doesn't work like that, he said, adding that the people who buy modeling agencies in order to meet models are not usually successful. Plus, there are much better ways to meet women than buying a magazine.
"He doesn’t need a magazine to hang out with models," he said. "There are many ways to hang out with beautiful girls and you don’t need to buy a magazine. It's very expensive and also a big responsibility."
On Dec. 10, Maxim's lawyers filed the initial complaint against Gross for defamation and breach of contract. The complaint states that, "upon information and belief," Gross lied about the circumstances of the shoot to Kelly, therefore breaking his non-disclosure agreement and defaming Biglari and Maxim. (Neither the Post nor Kelly are defendants in the suit.) The complaint did not provide any evidence that Gross was the Post's source, other than the fact that Gross had been the only Maxim employee besides Bensimon present at the photoshoot.
"Every time they make an allegation against Wayne, they say 'upon information and belief,'" Stracher, Gross' attorney, said. "What does that mean translated into English? That means they have absolutely no facts upon which to make an allegation; they simply believe it to be true."
Both Gross and Stracher repeatedly denied to Maxim that Gross had been the Post's source.
On Dec. 27, in a twist straight out of "Les Miserables," Feifer's attorney, Chandra Sherman, emailed Maxim's lawyers to say that they had the wrong guy: "Not only was Mr. Feifer a source for the New York Post article (‘Post article’), but we are reasonably certain that he was the only direct source."
The next day, Gross signed a sworn affidavit stating that he had never spoken with the Post or talked about the shoot to Feifer, who was not on set in Monte Carlo.
"At no point did I disclose of divulge any information or opinions about the Photo Shoot to the Post, or to anyone working for the Post, or to anyone for the purpose of disclosing anything to the Post," Gross wrote in the affidavit.
He also said that he thought the Post's source — whoever it was — had been wrong about the shoot.
"I never told anyone — ever — that I thought Mr. Biglari’s behavior at the Photo Shoot was inappropriate or ‘creepy.’ In fact, I believe just the opposite: i.e., that Mr. Biglari’s behavior during the Photo Shoot was entirely professional,” he wrote.
Stracher, Gross' attorney, gave the affidavit to Maxim's lawyers, in the hopes that they would see that they had the wrong guy and drop the suit.
Maxim's lawyers did not drop the suit. Instead, they filed the amended complaint, naming both Gross and Feifer as defendants, and made Gross' affidavit public.
"He signed it and I gave it to the lawyers for Maxim with the hope that they would see it, realize they had the wrong guy, and dismiss the suit against him. Instead, what they did was they turned around and amended the complaint and attached the affidavit as a public document," Stracher said.
The obvious question, and the one that Stracher wants answered, is why Maxim insists on suing Gross.
The amended complaint, filed by Maxim's lawyers on Jan. 4, states that, "upon information and belief," Gross was the original source for the false details about the shoot. Gross may never have talked to the Post or Feifer about the shoot, this argument goes, but he still talked about the shoot and eventually what he said made its way to Feifer and then to the Post.
Gross' affidavit states that he never spoke to Feifer and he never spoke to the Post, but that still leaves open the possibility that he spoke to someone who spoke to Feifer, who then spoke to the Post. One of Maxim's attorneys, Chris Clark, told POLITICO Media that Gross has refused to sign an affidavit stating that he never spoke to anyone about the shoot. If Gross had done that, Clark said, then Maxim would have dropped him from the suit.
"Gross is in the lawsuit because he’s refused to state that he never made the false statements included in the article. That’s all he needs to for the lawsuit to be resolved, but it’s quite telling that his lawyer repeatedly refuses to call us back," Clark said in a statement.
Stracher said that this is a weak argument.
"I mean, their theory of the case was that somehow Wayne was involved in leaking this to the Post. But if you’re talking to another employee at work and then that employee leaks it, how are you involved in the leak, except to the extent that you’re just doing your job and talking to another employee about your job?" Stracher said. "So even their whole theory is screwed up."
It is extremely rare for a news organization to sue former employees who criticize them in the press, even if those employees are technically breaking non-disclosure and non-disparagement agreements. A Maxim spokesman said that the suits against Feifer and Gross are not about muzzling former employees, but just about setting the record straight.
"It’s not about talking to reporters. It’s about breaching a contract and telling lies," he said.
The upshot: if Biglari behaved like a perfect gentleman on the Monte Carlo shoot, but a former Maxim employee lied to the Post about it to hurt the magazine's reputation, then Maxim needs to sue to force the former employee to tell the truth.
(There's also a mysterious restraining order in the case: On Dec. 22, Maxim's lawyers filed a lawsuit under seal against both Feifer and his attorney, Chandra Sherman. The next day, they asked a judge to grant a temporary restraining order against Feifer and Sherman. Since the suit is under seal, neither the Maxim spokesperson nor Feifer would discuss it.)
As we first reported this morning, Biglari will be named editor in chief and Bensimon will be added to the masthead in a top creative role as of the next issue. Feifer is now the interim executive editor for Entrepreneur magazine. Gross is now the men's fashion director for the Amazon-owned fashion site Shopbop.
But the litigation continues. Feifer and his attorney are bound by a mysterious restraining order and Maxim is still pursuing legal action against Gross.
"Think about this from Wayne's perspective," Stracher said. "I hate to use this word because it’s thrown around a lot, but this is like a Kafkaesque nightmare for Wayne."