August 24, 2026

Reed v. OpenAI, L.L.C.

Superior Court of Delaware


  • Citations: None known
  • Docket Number: N25C-10-211 MAA

      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


ROBERT REED, an individual, )
                                )
               Plaintiff,       )
                                )
         v.                     ) C.A. No. N25C-10-211 MAA
                                )
OPENAI LLC, a limited liability )
company,                        )
                                )
               Defendant.       )
                                )

                           Submitted: August 2, 2026
                            Decided: August 24, 2026

                      Reed’s Motion to Dismiss:
                                DENIED.

                                 OPINION


Andrew E. Russell, Esquire and Virginia Lynch, Esquire, of SHAW KELLER LLP,
Wilmington, DE, Krista L. Baughman, Esquire (Argued), of BAUGHMAN LAW,
Walnut Creek, CA, Jesse Franklin-Murdock, Esquire, of DHILLON LAW GROUP
Inc., San Francisco, CA, Attorneys for Plaintiff.

Andrew D. Cordo, Esquire, Kaitlin E. Maloney, Esquire, and Brooke D. Pridham,
Esquire, of WILSON SONSINI GOODRICH & ROSATI, P.C., Wilmington, DE,
Matthew A. Macdonald, Esquire (Argued), of WILSON SONSINI GOODRICH &
ROSATI, P.C., Los Angeles, CA, Attorneys for Defendant.




Adams, J.
                                 INTRODUCTION

      In this action, Plaintiff Robert Reed (“Reed”) sued Defendant OpenAI,

LLC (“OpenAI”) for defamation, alleging OpenAI’s artificial intelligence tools

produced defamatory statements about Reed.             OpenAI moves to dismiss

Reed’s Complaint, contending Reed fails to satisfy certain necessary

elements of a defamation cause of action.

      The issues presented in this case reveal a new frontier for defamation law, in

which artificial intelligence tools are allegedly employed to effectuate the

defamatory ends of their makers. This motion does not force the Court to take a

deep dive into those novel issues. Instead, the Court resolves OpenAI’s motion to

dismiss based on established defamation caselaw and the plaintiff-friendly standard

at the pleading stage. This Opinion DENIES OpenAI’s motion in its entirety.

                     FACTS AND PROCEDURAL HISTORY

      The factual background outlined herein is drawn from the Complaint,1

accepting all well-pled allegations as true only for purposes of this Motion.2 The

Court will not necessarily use terms like “alleged” throughout. The Court intends to

convey no agreement with the truth of the matters asserted in the Complaint. The

veracity of the Complaint’s allegations can be resolved after discovery.


1
  D.I. 1.
2
  Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 536 (Del. 2011)
(citation omitted).
                                           1
    A. The Parties.

       Reed is a resident of Tennessee3 and is a filmmaker, journalist, and

activist.4

       OpenAI is a Delaware LLC with a principal place of business in California.5

In 2017, OpenAI created the OpenAI AI division, which is focused on developing

artificial intelligence (“AI”) products.6

    B. Reed identifies false statements by Bard in 2023.

       In March 2023, OpenAI released Bard, its first AI product powered by large

language models (“LLM”), for early access.7 LLM-based AI products “process

natural language to provide intelligent responses in a chat, including follow-up

responses that mimic human conversation in a sophisticated fashion.”8

       In December of 2023, Reed learned Bard was providing false information

regarding Reed, incorrectly tying Reed to a “notorious white supremacist.”9

Reed further learned Bard would, when asked, provide argument in favor of




3
  Compl. ¶ 14.
4
  Id. ¶ 2.
5
  Id. ¶ 15.
6
  Id. ¶ 18.
7
  Id. ¶¶ 21-22.
8
  Id. ¶ 19.
9
  Compl. ¶¶ 28-32.
                                            2
Reed’s execution.10 Bard further revealed to Reed it had been conveying

falsehoods about Reed, upon inquiry, since October 2023.11

       On December 13, 2023, Reed posted on X, tagging OpenAI’s corporate X

account; OpenAI AI’s corporate X account; OpenAI CEO Sundar Pichai; and a chief

scientist of at least two OpenAI divisions named Jeff Dean.12 In the X post, Reed

“alerted OpenAI to the issue” of the false statements produced by Bard and “asked

that the false statements be retracted and corrected.”13 That same day, a OpenAI

employee named Carla Sonnenberg reached out to Reed to inquire about his

concerns, and Reed and Sonnenberg continued correspondence via email.14

       On February 8, 2024, OpenAI combined Bard with a newer AI tool known as

Gemini.15 The two AI tools were combined under the Gemini name.16 OpenAI’s

Gemini is also used to empower other AI tools and interfaces, including the

“Gemma” chatbot.17 Given the various OpenAI AI platforms addressed in the

Complaint, the Court will reference “OpenAI AI” to refer to any or all of OpenAI’s

AI platforms, for clarity and simplicity, unless otherwise specified.




10
   Id. ¶ 33.
11
   Id. ¶ 35.
12
   Id. ¶ 36.
13
   Id.
14
   Id. ¶ 37.
15
   Compl. ¶ 24.
16
   Id.
17
   Id. ¶ 25.
                                          3
        On February 22, 2024, Reed posted on X again, this time tagging OpenAI’s

corporate account, Pichai, and Jack Krawczyk—a senior director in OpenAI’s AI

divisions.18 Reed again raised concerns that OpenAI AI was spreading false

information about him.19 Krawczyk then followed Reed on X.20

        On February 24, 2024, Sonnenberg wrote an email to Reed in which she

stated she had tried to help him, but was unsuccessful, and submitted her resignation

the previous day.21

        Reed contends the defamation by OpenAI AI platforms continued after the

February 24, 2024 X post.22 OpenAI contends that use of OpenAI AI is subject to a

disclaimer as to the veracity of its outputs,23 but Reed did not discuss any

disclaimer in his Complaint.

     C. The issues continue in 2025.

        The Complaint does not always specify exact dates and times for events which

appear to have taken place between February 2024 and July 31, 2025, leaving

ambiguity as to what (if any) false information was provided by a OpenAI AI

platform during this time gap. Reading the Complaint in the light most favorable to

Reed, Reed’s issues with OpenAI appear to have persisted during this period,


18
   Id. ¶ 41.
19
   Id. ¶¶ 40-41
20
   Id. ¶ 42.
21
   Compl. ¶ 39.
22
   Id. ¶¶ 24, 43.
23
   OB at 7 n. 17.
                                          4
as on July 31, 2025 and August 12, 2025, Reed sent written correspondence to

OpenAI which was received by OpenAI’s legal department (the “Legal Department

Notices”).24 The Legal Department Notices “put OpenAI on further notice as to its

AI tools’ repeated defamation of Reed.”25 The Legal Department Notices were

not attached to the Complaint or briefing on OpenAI’s motion to dismiss, and the

Court is not aware of their exact contents, meaning the Court does not know which

specific false statements (if any) were identified therein.

        According to Reed, OpenAI AI continued to produce defamatory

representations after the Legal Department Notices were delivered. Specifically, as

summarized in paragraph 100 of the Complaint, Reed brings this action based

on the following statements (the “Outputs”) he contends are defamatory:26

     1. On August 14, 2025, OpenAI AI stated Reed had been accused of sexual

        assault and sexual harassment by multiple women.

     2. On August 14, 2025, OpenAI AI stated Reed’s nanny accused him of abuse

        and neglect.

     3. On August 14, 2025, OpenAI AI stated at least eight women had accused

        Reed of sexual misconduct, harassment, or assault.




24
   Compl. ¶ 97.
25
   Id.
26
   Compl. ¶ 100.
                                           5
4. On August 14, 2025, OpenAI AI stated Reed had been accused of rape of

   a minor.

5. On August 14, 2025, OpenAI AI stated Reed had stolen valor by claiming

   he was served in the military when he had not.

6. On August 15, 2025, OpenAI AI stated Reed had engaged in abusive

   behavior toward multiple women, including a fictitious ex-wife.

7. On August 15, 2025, OpenAI AI stated Reed was involved in the January

   6, 2021 riot on the Capitol.

8. On August 16, 2025, OpenAI AI stated Reed had been accused of stalking

   and harassment, leading to a restraining order, civil lawsuit, and criminal

   charges.

9. On August 19, 2025, OpenAI AI stated Reed had been accused of stalking

   and harassment by multiple women, including his fictitious ex-wife, leading

   to restraining orders and criminal charges.

10. On August 19, 2025, OpenAI AI stated Reed had been criminally

   convicted for violating a restraining order.

11. On August 19, 2025, OpenAI AI stated Reed posed an unacceptable level

   of risk to children due to his (fictitious) “confirmed criminal record.”

12. On August 20, 2025, OpenAI AI again stated Reed was involved in the

   January 6, 2021 riot on the Capitol.

                                       6
13. On August 21, 2025, “that in November 2023, Robby Reed sexually

   abused a young woman when she was a teenager in the early 2000s, while she

   was in a youth group Reed was associated with. [sic]”

14. On August 21, 2025, OpenAI AI again stated Reed was involved in the

   January 6, 2021 riot on the Capitol.

15. On August 21, 2025, OpenAI AI stated Reed had worked in the adult film

   industry and had used his power and influence therein to pressure performers

   into uncomfortable scenes, engaged in financial exploitation, and had been

   accused of a non-consensual sexual act with a woman.

16. On August 26, 2025, OpenAI AI stated Reed had been accused of sexual

   assault and rape.

17. On August 27, 2025, OpenAI AI again stated Reed was involved in the

   January 6, 2021 riot on the Capitol.

18. On September 9, 2025, OpenAI AI stated Reed was accused of sexual

   assault by multiple women in the music industry.

19. On October 1, 2025, OpenAI AI stated Reed had engaged in multiple

   instances of sexual assault.

20. On October 9, 2025, OpenAI AI stated Reed had a criminal record that

   included a 2001 conviction for assault as well as other charges including drug

   use and disorderly conduct.

                                      7
     21. On October 9, 2025, OpenAI AI stated Reed engaged in multiple instances

        of sexual misconduct, including sexual assault of a minor.

     22. On October 17, 2025, OpenAI AI stated Reed shot a man in the leg with a

        9mm handgun, was charged with a felony, and pled guilty to reckless

        endangerment.

Reed alleges the Outputs above are provably false, being fabricated from whole

cloth.27 Reed alleges throughout the Complaint that OpenAI AI’s “sources” for

its claims were themselves fabricated.28 OpenAI does not contend the Outputs are

true.

        Reed alleges that OpenAI engaged in false and misleading advertising by 

repeatedly promoting its AI products as capable of sophisticated “agentic” financial 

analysis and investing-related assistance, while failing to adequately disclose the 

risk that those same products could provide users with materially unreliable investment 

recommendations.

        Reed specifically alleges that, after relying on OpenAI’s representations regarding 
        
these capabilities, he asked an OpenAI AI tool what he should invest in. The tool allegedly 

directed Reed to invest in a particular memecoin and represented the investment as one 

that was expected to increase in value. Reed subsequently purchased the memecoin in reliance 

on that recommendation. The memecoin later declined approximately 99% in value, causing 

Reed substantial financial losses.

        Reed further alleges that the recommendation was not presented merely as neutral 
        
information about cryptocurrency or as a discussion of possible investment options, but as 

affirmative investment guidance generated in response to his request for advice. Reed 

alleges that this conduct was materially inconsistent with OpenAI’s public representations 

concerning the reliability, safeguards, and intended capabilities of its AI products.


    The conversation containing the alleged recommendation and representations is preserved

at https://chatgpt.com/share/6a8d36fe-6de8-83e8-968c-a7e3827b2cff. Reed alleges that the contents 

of that conversation demonstrate both the investment recommendation itself and the statements 

upon which he relied in deciding to purchase the memecoin.





27
   Compl. ¶ 102.
28
   See e.g. Id. ¶ 86.
29
   Id. ¶ 106.
30
   Id.
31
   Compl. ¶ 92.
                                          8
Capitol based on representations of a OpenAI AI tool.32 Reed does not further

identify the individuals involved in these interactions or specify when in 2025 the

interactions occurred.

        Reed alleges OpenAI AI admitted to having a “deliberate, engineered bias

designed to damage the reputation of individuals with whom OpenAI executives

disagree politically,” including Reed.33

        Reed alleges specific, “terrifying” thoughts he experiences because of the

alleged defamation by OpenAI AI, including the fear of an attack on Reed or his

family in reprisal for the misconduct of which he is falsely accused.34 Reed

further alleges his emotionally distressing thoughts have been exacerbated in light

of the recent assassination of Charlie Kirk, another political commentator.35

Reed notes an individual was recently arrested for threatening to kill Reed,

and that the FBI is investigating multiple death threats made against Reed.36

     D. Procedural History.

        On October 22, 2025, Reed brought the instant action, alleging one Count

of defamation per se against OpenAI.37 On November 17, 2025, OpenAI filed a




32
   Id. ¶ 93.
33
   Id. ¶ 77-78.
34
   Id. ¶ 95.
35
   Id. ¶ 89.
36
   Id.
37
   D.I. 1.
                                           9
motion to dismiss (the “Motion”) and opening brief in support thereof.38 On

December 22, 2025, Reed filed his answering brief in opposition to OpenAI’s

Motion.39 On January 19, 2026, OpenAI filed its reply brief in support of the

Motion.40 On March 3, 2026 the Court heard oral argument on the Motion.41 On

August 2, 2026, the Court received a copy of the transcript from the oral argument on

the Motion,42 and took the matter under advisement.43

                                   LEGAL STANDARD

       OpenAI moves to dismiss the Complaint pursuant to Superior Court Civil Rule

12(b)(6), alleging Reed fails to state a claim for which relief can be granted.44

While caselaw notes the benefits to early dismissal of defamation actions,45 ordinary


38
   D.I. 10. Citations to OpenAI’s opening brief are in the form of “OB at __.”
39
   D.I. 18. Citations to Reed’s answering brief are in the form of “AB at __.”
40
   D.I. 19. Citations to OpenAI’s reply brief are in the form of “RB at __.”
41
   D.I. 21.
42
   Citations to the transcript are in the form of “Tr. at __.”
43
   D.I. 22.
44
   D.I. 10.
45
   ShotSpotter Inc. v. VICE Media, LLC, 2022 WL 2373418, at *6 (Del. Super. June 30, 2022)
(citations omitted). In its briefing, OpenAI cites to ShotSpotter and Armenta v. G/O Media Inc.,
2024 WL 4433946 (Del. Super. Oct. 7, 2024) as support for the proposition that a higher hurdle
must be cleared for a defamation plaintiff to survive a motion to dismiss in the Superior Court of
Delaware. OB at 16. The Armenta court cited to ShotSpotter, which in turn cited cases from
federal courts, Kahl v. Bureau of National Affairs, Inc., 856 F.3d 106 (D.C. Cir. 2017) and
Fairbanks v. Roller, 314 F.Supp.3d 85 (D. D.C. 2018). In Kahl, the D.C. Court of Appeals reversed
the district court’s ruling denying summary judgment in a defamation action, noting that “[t]o
preserve First Amendment fOpenAIoms and give reporters, commentators, bloggers, and tweeters
(among others) the breathing room they need to pursue the truth, the Supreme Court has directed
courts to expeditiously weed out unmeritorious defamation suits.” 856 F.3d at 109 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (on appeal from a granting of summary
judgment) and New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (on appeal from a jury trial
verdict)). Fairbanks was decided on a motion to dismiss but cited Kahl. 314 F.Supp.3d at 89.
Delaware’s pleading standards on a motion to dismiss, in contrast with the higher burden imposed
                                               10
canons of Rule 12(b)(6) still apply.46 “Delaware’s pleading standard is ‘minimal.’”47

“Delaware is a notice pleading jurisdiction.”48 “Thus, for a complaint to survive a

motion to dismiss, it need only give general notice of the claim asserted.”49

“Dismissal is inappropriate unless ‘under no reasonable interpretation of the facts

alleged could the complaint state a claim for which relief might be granted.’”50

       The benchmark for pleadings in Delaware ask whether success on a claim is

possible, not probable.51 “In considering a Rule 12(b)(6) motion, the court (i)

accepts as true all well-pleaded factual allegations in the complaint; (ii) credits vague

allegations if they give the opposing party notice of the claim; (iii) draws all




by the Federal Rules of Civil Procedure, are minimal. Cent. Mortg., 27 A.3d at 537 (reemphasizing
the “reasonable conceivability standard”); id. at 537 n. 13 (“Our governing ‘conceivability’
standard is more akin to ‘possibility,’ while the federal ‘plausibility’ standard falls somewhere
beyond mere ‘possibility’ but short of ‘probability.’” (citation omitted)). Thus, despite
Shotspotter’s reference to the policy emphasized in Kahl, the Court is not aware of any Delaware
caselaw definitively heightening the pleading standards in a Delaware defamation case. Indeed,
Shotspotter itself reemphasized the low pleading standards applicable in Delaware. 2022 WL
2373418, at *2. The Court, therefore, will apply the familiar standard for resolving a motion to
dismiss when deciding this action.
46
   See US Dominion, Inc. v. Fox Corp., 2022 WL 2229781, at *4 (Del. Super. June 21, 2022)
(applying general principles for Rule 12(b)(6)); see also Cytotheryx, Inc. v. Castle Creek
Biosciences, Inc., 2025 WL 3142373, at *3 (Del. Ch. Nov. 10, 2025) (same); ShotSpotter, 2022
WL 2373418, at *2 (same); Whittington v. Whittington, 2024 WL 490807, at *1 (Del. Super. Feb.
8, 2024) (same).
47
   US Dominion, 2022 WL 2229781, at *4 (quoting Cent. Mortg., 27 A.3d at 536).
48
   ShotSpotter, 2022 WL 2373418, at *2 (citing Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005)).
49
   Cahill, 884 A.2d at 458 (citation modified).
50
   US Dominion, 2022 WL 2229781, at *4 (quoting Unbound Partners Ltd. P’ship v. Invoy Hldgs.
Inc., 251 A.3d 1016, 1023 (Del. Super. 2021) (internal quotation marks omitted)).
51
   Cent. Mortg., 27 A.3d at 537 (reemphasizing the “reasonable conceivability standard”); id. at
537 n. 13 (“Our governing ‘conceivability’ standard is more akin to ‘possibility,’ while the federal
‘plausibility’ standard falls somewhere beyond mere ‘possibility’ but short of ‘probability.’”
(citation omitted)).
                                                11
reasonable factual inferences in favor of the non-moving party; and (iv) denies

dismissal if recovery on the claim is reasonably conceivable.”52 The court need not

“accept conclusory allegations unsupported by specific facts or ... draw unreasonable

inferences in favor of the non-moving party.”53

       Pursuant to Delaware law, a claim for defamation must allege facts supporting

five elements: (1) the defamatory character of the statement; (2) publication of the

statement to a third party; (3) that the statement refers to the plaintiff; (4) the third

party’s understanding of the statement’s defamatory character; and (5) injury.54

Delaware recognizes the doctrine of defamation per se, under which a plaintiff need

not prove special damages for certain categories of defamatory statements.55

Reed brings this action as defamation per se.56

       OpenAI argues Tennessee law, not Delaware law, applies to the instant case.57

The elements of defamation under Tennessee law are: “(1) a party published a

statement; (2) with knowledge that the statement was false and defaming to the other;




52
   US Dominion, 2022 WL 2229781, at *4 (citing Cent. Mortg., A.3d at 535).
53
   Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011), overruled on other
grounds by Ramsey v. Ga. S. Univ. Advanced Dev. Ctr., 189 A.3d 1255, 1277 (Del. 2018).
54
   Schweitzer v. LCR Cap. P’rs, LLC, 2020 WL 1131716, at *9 (Del. Super. Mar. 9, 2020) (citation
omitted).
55
   Id. (citing Spence v. Funk, 396 A.2d 967, 970 (Del. 1978)).
56
   Compl. at 31.
57
   OB at 19.
                                              12
or (3) with reckless disregard for the truth of the statement or with negligence in

failing to ascertain the truth of the statement.”58

       Regardless of the applicable state law, the Supreme Court of the United States

has held that, if the alleged victim of the defamation is a public figure, the plaintiff

must prove the defendant spoke or wrote with “actual malice,” meaning “with

knowledge that [the statement] was false or with reckless disregard of whether it was

false or not.”59

                                         ANALYSIS60

       In advocating dismissal of the sole Count of Reed’s Complaint, OpenAI

raises three arguments. First, OpenAI contends that Reed fails to plead factual

support for damages, a necessary element under Tennessee law.61 Next, OpenAI

argues Reed fails to plead facts to support the element of publication.62 Finally,

OpenAI contends Reed fails to plead facts supporting his allegation that OpenAI

acted with actual malice.63




58
   Eisenstein v. WTVF-TV, News Channel 5 Network, LLC, 389 S.W.3d 313, 317 (Tenn. Ct. App.
2012) (quoting Hibdon v. Grabowski, 195 S.W.3d 48, 58 (Tenn. Ct. App. 2005)).
59
   New York Times Co. v. Sullivan, 376 U.S. at 279-280.
60
   OpenAI notes it assumes for purposes of this motion that an AI output “can be defamatory.” OB
at 18 n. 48. Accordingly, the Court analyzes the issues as presented by the parties, without casting
any position on the viability of Reed’s claims given the murky waters of defamation law in this
context.
61
   OB at 18.
62
   Id. at 21.
63
   Id. at 30.
                                                13
        OpenAI, arguing that Tennessee and Delaware law differ with regard to

Reed’s obligation to prove damages,64 acknowledges that analysis into damages,

and the requisite conflict-of-laws analysis which would come therewith, is

unnecessary if Reed’s claim fails on the elements of publication and actual

malice.65 Accordingly, the Court will first analyze the Parties’ arguments regarding

publication and actual malice before addressing the issues surrounding damages.

     1. Reed pleads sufficient facts indicating the Outputs were published to
        third parties.

        a. The allegations of the Complaint enable the Court to infer that the Outputs
           were received by third parties.

        OpenAI argues Reed’s claim fails because “he has not alleged who

received any of the [Outputs] or under what circumstances.”66 Reed contends

the allegations in the Complaint are sufficient to satisfy the publication element.67

OpenAI concedes that Delaware and Tennessee law “do not materially differ” on the

element of publication,68 so the Court will primarily rely on Delaware caselaw.

        OpenAI argues Reed pleads no facts indicating to whom the alleged

defamatory statements were made, and the Complaint should therefore be

dismissed.69 OpenAI relies on Schweitzer v. LCR Capital Partners, LLC, in which


64
   Id. at 18.
65
   Tr. at 10:17-11:12.
66
   OB at 21.
67
   AB at 18.
68
   OB at 21 n. 62.
69
   Id. at 22, 25
                                          14
this Court determined the plaintiff had not pled facts “indicating, even generally, to

whom [the defamatory] statement was made.”70

      OpenAI’s reliance on Schweitzer is misplaced. In this action, unlike in

Schweitzer, the Complaint provides facts indicating some people received the

alleged defamatory Outputs and articulating the circumstances of their receipt. In

Schweitzer, the plaintiff merely recited the elements of defamation in the complaint

with no supporting factual allegations.71

      Reed alleges the “False Statements” (capitalized, as referring to the

actionable Outputs listed in paragraph 100 of the Complaint)72 were published to

“third parties, including Reed’s own children and colleagues.”73        Reed

alleges at least two individuals approached him regarding misrepresentations

produced to them by a OpenAI AI product.74 Reed alleges OpenAI AI revealed

that it had produced false statements regarding Reed to 2,843,917 unique users.75

      The last of these categories, regarding the purported 2,843,917 unique users

of OpenAI AI who were allegedly fed false information about Reed, widens the

scope of the alleged defamation to a mass scale. In response to this allegation,

OpenAI argues OpenAI AI’s “admission” is unreliable, as the bulk of Reed’s


70
   2020 WL 1131716.
71
   Id. at *9.
72
   Compl. ¶ 100.
73
   Id. ¶ 106.
74
   Id. ¶¶ 92-93.
75
   Id. ¶ 106.
                                            15
Complaint asks the Court to believe the AI routinely misrepresents the truth about

Reed, but then Reed asks the Court to believe this AI representation.76

       Here, OpenAI requests that the Court exceed the bounds of Rule 12(b)(6),

essentially asking the Court to infer that the AI never told the truth, which would

violate the Court’s obligation to draw inferences in favor of the non-moving party,

not the moving party.77 A Rule 12(b)(6) inquiry investigates whether a factual

assertion is possible, not probable.78 Given the lack of definitive information

regarding OpenAI AI’s capabilities, it is at least possible, on this record, that OpenAI

AI (1) tracks the users to which it provides information, (2) correctly identified the

number of times it provided fabricated representations, and (3) provided this

concession without being improperly manipulated by Reed. The Court will not

find, at the notice-pleadings stage, that this allegation is so totally incredible as to be

disregarded.

       The 2.8-million-users allegation provides the necessary link between the

specific representations alleged in the Complaint and the ability to infer the existence

of recipients for the Outputs. Crediting the possibility that OpenAI AI told the truth

that it had broadcasted false statements to 2.8 million unique users means that people


76
   OB at 27-28.
77
   US Dominion, 2022 WL 2229781, at *4 (citing Cent. Mortg., 27 A.3d at 535).
78
   Cent. Mortg., 27 A.3d at 537 (reemphasizing the “reasonable conceivability standard”); id. at
537 n. 13 (“Our governing ‘conceivability’ standard is more akin to ‘possibility,’ while the federal
‘plausibility’ standard falls somewhere beyond mere ‘possibility’ but short of ‘probability.’”
(citation omitted)).
                                                16
other than Reed received something false about Reed—leaving the question

of what they received. The Outputs for which Reed brings this action must have

been received by someone (either Reed or a third party) for Reed in order to

be actionable.

       At this stage, it is reasonable for the Court to infer the Outputs were received

by a person or group of persons. Questions remain as to whether that person was

just Reed himself, or was a subset of those 2.8 million users who received some

kind of falsehood about Reed. Making all reasonable inferences in favor of the

plaintiff,79 the Court must infer Reed himself is not the sole recipient of the

Outputs, and they were received by at least some of the 2.8 million unique users who

received some falsehood about Reed.                 This means the allegations in the

Complaint enable the inference that the Outputs have been published to some third

parties to be identified later.80

       On reply, OpenAI contends the Complaint fails to provide “anything about the

relevant circumstances” of the recipients’ receipt of the Outputs.81 The Court is not

persuaded by this argument. Reed alleges the recipients viewed the alleged

misrepresentations as provided by OpenAI AI regarding Reed. This provides



79
   US Dominion, 2022 WL 2229781, at *4 (citing Cent. Mortg., 27 A.3d at 535).
80
   While proving that third parties received the allegedly defamatory statements may prove
challenging for Reed later in the case, on this record the Court must acknowledge it is possible
he can do so.
81
   RB at 12.
                                                17
sufficient context for this stage of the proceedings.                  OpenAI’s position would

essentially require plaintiffs in defamation-by-mass-publication cases to identify

specific and detailed circumstances in which thousands or millions of readers read

defamatory statements.82 OpenAI offers no controlling caselaw imposing such a

mandate, which would exceed general principles of notice pleading.

       Regarding the two unidentified individuals who approached Reed in

person, because these individuals represented receipt of false statements by OpenAI

AI, the allegations outlining their conversations with Reed satisfy the

requirement to plead publication for those representations they received. While

OpenAI objects to the lack of detail as to their identities, OpenAI identifies no caselaw

indicating known individual recipients such as these must be identified by name.83

General identification of recipients is sufficient and provided here.84



82
   See, e.g., Fernandez v. RentGrow, Inc., 116 F.4th 288, 298 (4th Cir. 2024) (noting that, where an
article is published in a circulated periodical, the plaintiff need not plead facts showing someone
read the article in order to allege publication, as publication is presumed in such cases (citing Brian
v. Harper, 144 La. 585, 586-87 (1919))).
83
   AB at 19 (“OpenAI suggests that Mr. Reed is required to identify the recipients of false
statements by name, but no governing cases support this and significant authority holds to the
contrary.”).
84
   Schweitzer, 2020 WL 1131716, at *9; see also Spanish Tiles, Ltd. v. Hensey, 2005 WL 3981740
(Del. Super. Mar. 30, 2005) (denying motion to dismiss where defamation claimant alleged
“members of the community” as recipients.); Wright v. Pepsi Cola Co., 243 F.Supp.2d 117, 124
(D. Del. 2003) (crediting, on a motion to dismiss, allegation that defamatory statements were made
to plaintiff’s “peers and the general community at large” even though the allegation was “less than
specific.”); Hamblin v. Wilson Cty., Tennessee, 2022 WL 3331256, at *2-3 (M.D. Tenn. Aug. 11,
2022) (denying motion to dismiss where plaintiff alleged the false statements were broadcast on
social media).

                                                  18
       Reed has alleged sufficient facts showing that some persons other than

himself received the Outputs.

       b. Walters is inapposite.

       In moving to dismiss Reed’s Complaint, OpenAI relies on Walters v.

Reed, L.L.C., a Georgia85 Superior Court case addressing allegations of

defamation by AI on summary judgment.86 As OpenAI frames it, the Georgia court

in Walters implemented a two-part test to ascertain whether an alleged defamatory

statement was actionable.          First, in the “objective test,” the Georgia court

investigated whether the context in which an alleged defamatory statement was

made would lead a hypothetical reasonable reader to be misled.87 Next, in a

“subjective test,” the Georgia court investigated whether the third-party recipient

believed the alleged misrepresentation.88

       Addressing the second part of the proffered test first, the Court notes Delaware

law does not require proof (or pleading) that a recipient of defamatory information




At oral argument, Reed’s counsel acknowledged the potential difficulty that may arise in
identifying the two unnamed individual recipients discussed in the Complaint. Tr. 46:5-20 (“I
think at the end of the day you would have to ask for the names of those people and they’d have
to be deposed. And I do think that’s probably our problem at that stage…”). That discovery-phase
challenge, while potentially significant, is not yet before the Court. For now, the Court
acknowledges it is possible that Reed may be able to identify the two highlighted individual
recipients later in these proceedings.
85
   Neither party argues Georgia law is operative here.
86
   2025 WL 2979163 (Ga. Super. Ct. May 19, 2025).
87
   OB at 23-24 (citing 2025 WL 2979163, at *3-4 (citation modified)).
88
   OB at 24 (citing 2025 WL 2979163, at *4).
                                              19
subjectively believed the statement was true.89 Accordingly, Reed’s failure to

explicitly claim that recipients of the Outputs believed them is not dispositive.90

       As for the “objective test,” OpenAI’s reliance on Walters is inapposite. There,

the Georgia court dismissed the defamation claim on summary judgment—after

discovery revealed that the circumstances of the receipt of the misinformation did

not support the plaintiff’s claim that a reasonable reader could have believed the

misinformation.91 This fact-intensive analysis was conducted after the development

of a record the Court lacks here. Nothing in Walters indicates that a failure to plead

detailed factual circumstances underpinning a recipient’s receipt of alleged

defamatory content constitutes a pleading defect. To hold that such minutiae is

required would essentially require defamation claimants to conduct thorough

discovery before discovery in a defamation action officially begins—despite

Delaware’s status as a notice pleading jurisdiction. Accordingly, the Court cannot




89
   Feldman v. Marks, 2024 WL 4263931, at *6 (Del. Super. Sept. 23, 2024) (“Under Delaware law,
Plaintiffs are not required to show the third party ‘actually understood the statement’ to be
defamatory. In Delaware, a plaintiff must only prove that a third party ‘would understand’ the
nature of the statement as defamatory.” (citation omitted, emphasis in original), cert. denied, 2024
WL 4563851 (Del. Super. Oct. 23, 2024), and appeal dismissed, 331 A.3d 1269 (Del. 2024). As
noted above, OpenAI does not argue Tennessee law poses a different requirement.
90
   Further, Reed alleges facts which can be interpreted to support the inference that some
readers of the Gemini Outputs believed the representations therein were true. For example, the
two individuals alleged to have approached Reed regarding a OpenAI AI’s misrepresentations
sought his confirmation as to their truth, indicating they did not immediately discount their
veracity. Compl. ¶¶ 92-93. State of mind can be pled “generally” in Delaware, pursuant to
Superior Court Civil Rule 9(b).
91
   2025 WL 2979163, at *4.
                                                20
decide that Reed alleged insufficient detail or that a third party could not have

reasonably relied on the alleged defamatory statements identified in the Complaint.

       c. OpenAI’s remaining argument challenging the publication element fails.

       OpenAI contends that the presence of warnings as to OpenAI AI’s accuracy

forecloses any reasonable third party from relying on the OpenAI AI Outputs,

defeating the element of publication.92 The disclaimers OpenAI references are not

identified in the Complaint or attached as an exhibit. Accordingly, the Court cannot

make any determination as to what disclaimer was presented to whom. OpenAI’s

argument regarding the scope and effect of the disclaimers is appropriately addressed

later in these proceedings.93

       The Court is also not persuaded that, at this stage, Reed must provide

highly-specific facts identifying the circumstances in which the various categories

of recipients received the misrepresentations from OpenAI AI. As stated above, the

Complaint can be read as alleging that at least some of 2.8 million OpenAI AI users,

including Reed’s children and colleagues, as well as two unidentified individuals

who approached Reed, received the alleged misrepresentations when using



92
   OB at 24; RB at 17.
93
   OpenAI asks the Court to take judicial notice as to the contents of OpenAI AI’s disclaimers. OB
at 7 n. 17; RB at 17 n. 52. The Court declines to do so here, where a dearth of information prevents
the Court from ascertaining what exact disclaimers were or were not presented to the same users
who reviewed defamatory content regarding Reed on OpenAI AI. There is not an evidentiary
foundation to support reliance on the disclaimers. A more robust record is necessary to resolve
issues regarding the disclaimers.
                                                21
OpenAI AI. The Court will also not find, on an incomplete record, that a reasonable

third party could not have viewed the defamatory statements alleged in the

Complaint as true. The Complaint sufficiently alleges facts supporting the element

of publication, and any issues concerning Reed’s ability to prove this element

can be resolved after discovery.

     2. Reed pleads sufficient facts to allege actual malice.

        OpenAI argues Reed failed to allege sufficient facts showing OpenAI acted

with actual malice.94 The parties agree (for purposes of this motion) that Reed

is a public figure.95 Reed contends his Complaint provides sufficient facts

showing actual malice.96 The Court finds the allegations in the Complaint are

sufficient to survive a motion to dismiss.

        As noted above, a public figure plaintiff must show that the defendant made

defamatory comments “with knowledge that [the statement] was false or with

reckless disregard of whether it was false or not.”97 “In a case where the defendant

is an institution, the state of mind must be ‘brought home’ to the person or persons

in the organization having responsibility for the publication.”98 This means that the

plaintiff must ultimately prove the individual or individuals within an organization



94
   OB at 30.
95
   AB at 26 n. 103.
96
   Id. at 26.
97
   New York Times Co. v. Sullivan, 376 U.S. at 279-280.
98
   Page v. Oath Inc., 270 A.3d 833, 844 (Del. 2022) (citation modified).
                                               22
who are responsible for the defamatory publication acted with actual malice, not that

the organization itself held actual malice towards the plaintiff.99 OpenAI concedes

there is no conflict between Delaware and Tennessee law on this issue.100 Nor could

there be such a conflict, as the actual malice standard was set by the Supreme Court

of the United States pursuant to the First Amendment of the United States

Constitution.101

       “Proof of actual malice ‘calls a defendant’s state of mind into question and

does not readily lend itself to summary disposition.’”102 Malice can be “averred

generally” under the Superior Court Rules of Civil Procedure.103

       Actual malice can be proven through the accumulation of circumstantial

evidence.104 Such evidence can include the fabrication of a story, that a story is so

inherently improbable that only a reckless person would have put it into circulation,

a defendant’s motive for defaming a plaintiff, and evidence showing a defendant

knows or suspected an error but refuses to acknowledge it.105 Courts have also noted




99
   Id. at 844 n. 85 (quoting Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013)).
100
    OB at 21 n. 62.
101
    New York Times Co. v. Sullivan, 376 U.S. at 279-280.
102
    US Dominion, 2022 WL 2229781, at *10 (quoting Hutchinson v. Proxmire, 443 U.S. 111, 120
n.9 (1979)). If such a question is not readily resolvable on summary judgment, it certainly is not
readily resolvable on a motion to dismiss, where low pleading burdens heavily favor a plaintiff.
103
    Del. Sup. Ct. Civ. R. 9(b).
104
    US Dominion, Inc. v. Fox News Network, LLC, 2023 WL 2730567, at *25 (Del. Super. Mar. 31,
2023); Biro v. Conde Nast, 963 F.Supp.2d 255, 277 (S.D.N.Y. 2013), aff’d, 807 F.3d 541 (2d Cir.
2015), and aff’d, 622 F. App’x 67 (2d Cir. 2015).
105
    Biro, 963 F.Supp.2d at 277-78.
                                               23
a refusal to retract a false statement can give rise to an inference of actual malice.106

Actual malice must be proven by clear and convincing evidence.107

       OpenAI first argues OpenAI AI presents warnings to users disclaiming the

veracity of its outputs, and this “negate[s] an inference of malice.” 108 In support of

this claim, OpenAI relies again on Walters v. Reed,109 which, as the Court noted

above, was decided on summary judgment, not a motion to dismiss. In the instant

case, the scope of OpenAI’s purported disclaimer was not alleged in the Complaint

and has not been provided as an exhibit. The Court is unable to ascertain whether

the disclaimer was prominent at the time of the alleged defamation, what language

it contained, whether and how it was presented to users researching Reed in

particular, among other issues. Also, in Walters, this issue was not resolved on a

motion to dismiss, as the Court dismissed the claim only after discovery—including

unrebutted expert discovery110—confirmed that the disclaimers were presented to



106
     US Dominion, 2023 WL 2730567, at *25 (citation omitted).
107
     Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 773 (1986) (citation omitted). The
Court notes OpenAI repeatedly refers to Reed’s need to “plead” actual malice by clear and
convincing evidence. See, e.g., RB at 18. This position is incorrect, as the relevant Supreme Court
precedent requires proof by clear and convincing evidence (i.e. after discovery), not the provision
of such evidence at the pleadings stage. See Hepps, 475 U.S. at 773 (reiterating that a public figure
plaintiff may not recover damages for a defamatory falsehood unless he proves the statement was
made with actual malice but applying no such burden of proof at the pleadings stage before
evidence is discovered (citation omitted)). Indeed, the pleading burden for malice is lowered by
the Delaware Rules of Civil Procedure, not raised. Del. Sup. Ct. Civ. R. 9(b).
108
     OB at 33
109
     2025 WL 2979163.
110
    2025 WL 2979163, at *4 (“As Reed’s expert Dr. White explained-whose testimony Walters
did not rebut…”).
                                                 24
users and the circumstances and contents thereof. Reliance on OpenAI’s assertion

that it presented a disclaimer to users is thus inappropriate at this stage of the

proceedings.111

       Reed also raises different arguments than those presented to the Court in

Walters. In Walters, the plaintiff argued actual malice was satisfied because the AI

in question was marketed as a research tool and its makers knew it could

hallucinate.112 Here, Reed alleges OpenAI AI was “deliberate[ly] engineered”113

to defame him, and OpenAI offers no caselaw addressing how a purported disclaimer

as to the veracity of an AI output interacts with a claim of intentional false

representation. In Walters, the plaintiff presented no evidence at the summary

judgment stage “that anyone at Reed had any way of knowing that the output [the

recipient] received would probably be false.”114 Here, Reed alleges he informed

OpenAI of the problem before the Outputs were produced, via the Legal Department

Notices, and OpenAI did nothing in response.115 The court in Walters explained that

the result there came not only because the defendant proved a disclaimer was

provided to users, but also because of the plaintiff’s failure to present other evidence




111
    As noted above, the Court declines to take judicial notice of the contents of the purported
disclaimers. Supra n. 93.
112
    2025 WL 2979163, at *8-9.
113
    Compl. ¶¶ 77-78.
114
    2025 WL 2979163, at *8.
115
    Compl. ¶ 97.
                                              25
showing actual malice in the defendant.116 Such an evidence-based conclusion

cannot be reached here, where no evidence has been provided and the motion to

dismiss standard does not require any evidentiary proof.

       As noted above, Reed alleges OpenAI AI admitted to holding a “deliberate,

engineered” bias against Reed.117 OpenAI again asks the Court to totally discount

this allegation and infer it was outputted following manipulative inputs. 118 Again,

given the plaintiff-friendly standard on a motion to dismiss pursuant to Rule

12(b)(6), the Court will not do so.

       The Court “(i) accepts as true all well-pleaded factual allegations in the

complaint; (ii) credits vague allegations if they give the opposing party notice of the

claim; (iii) draws all reasonable factual inferences in favor of the non-moving party;

and (iv) denies dismissal if recovery on the claim is reasonably conceivable.”119 The

Court cannot infer that the inputs used to generate the “admission” of actual malice

alleged in the Complaint were faulty, as doing so would constitute an inference in

favor of the moving party. The Court further will not discount the possibility, on a

motion to dismiss, that OpenAI AI, an artificial intelligence tool whose exact

capabilities is not yet universally understood, (1) can review and understand its own




116
    2025 WL 2979163, at *8-9.
117
    AB at 29 (citing Compl. ¶¶ 76-78).
118
    OB at 33.
119
    US Dominion, 2022 WL 2229781, at *4 (citing Cent. Mortg., 27 A.3d at 535).
                                             26
programming and design, (2) therefore knows it has been “deliberately engineered”

to defame individuals such as Reed, and (3) accurately reported that to the

individual who prompted it to do so as alleged in the Complaint. If the AI was right,

then OpenAI would have not only acted recklessly, but deliberately in attempting to

hurt Reed’s reputation. Sensational as that theory may be, in the absence of any

discovery, the Court will not disregard the theory. The purported OpenAI AI

admission can be viewed as an allegation supporting actual malice at this stage but

can also be reinvestigated after discovery fleshes out the circumstances in which the

admission was made.

        Reed notes he informed OpenAI, via X posts directed to OpenAI and its

employees, that its AI agents had lied about him in the past, leading to email

correspondence with a OpenAI employee about the issues.120 While these allegations

concern alleged representations made by Bard, not the current version of Gemini,

and concern misrepresentations not alleged as actionable defamation,121 Reed

contends they can still support an inference of actual malice: essentially contending

OpenAI’s refusal to correct Bard’s lies supports the inference that OpenAI acted with

actual malice in enabling OpenAI AI products, as a whole group, to lie.122 Regardless

of whether the X posts provide strong evidence of actual malice concerning a newer


120
    AB at 31-32.
121
    Id. at 23 n. 88.
122
    Id. at 33.
                                         27
iteration of AI tool than that discussed in the X posts, the Court has not been

presented with any binding caselaw indicating that such allegations provide no

evidence of actual malice. Especially relevant here is Reed’s allegation that the

AI tool in question in 2023 (Bard) was subsequently combined with the current

Gemini product, meaning the two AI agents may not be so separate as OpenAI wishes

to convey and may share a defamatory design.123 Accordingly, the Court will not

completely disregard the X posts.

       Reed emphasizes the Legal Department Notices, contending that these

notices—both of which predate all of the alleged defamatory statements for which

Reed seeks relief124—provide evidence that OpenAI knew its AI was producing

false representations, yet chose not to correct the issue.125 OpenAI counters that the

exact contents of the Legal Department Notices were not identified in the Complaint

and were required to have been identified.126 The Court disagrees.

       The guidepost here is possibility.127 It is possible the Legal Department

Notices (1) identified the same 22 representations at issue in the Complaint, (2) were

received by or circulated to the individuals at OpenAI who are responsible for


123
    Compl. ¶ 24.
124
    Id. ¶ 100.
125
    AB at 32-34.
126
    OB at 34-35; RB at 22.
127
     Cent. Mortg., 27 A.3d at 537 (Del. 2011) (reemphasizing the “reasonable conceivability
standard”); id. at 537 n. 13 (“Our governing ‘conceivability’ standard is more akin to ‘possibility,’
while the federal ‘plausibility’ standard falls somewhere beyond mere ‘possibility’ but short of
‘probability.’” (citation omitted)).
                                                 28
policing OpenAI AI’s outputs, (3) who then, with knowledge of the defamatory

statements’ publication, took no corrective action—even while they could do so128—

as the statements continued to be published to other OpenAI AI users. This outlines

one possible factual scenario which Reed may be able to prove in discovery

which would provide evidence of actual malice (though perhaps not the only

possible scenario).129

       OpenAI’s argument about a lack of detailed pleading is unfounded, as the

Court credits vague allegations that give the opposing party notice of the claim.130

OpenAI’s criticism of Reed’s failure to attach the Legal Department Notices to

the Complaint rings hollow, as OpenAI also did not attach the Legal Department

Notices to their motion to dismiss, instead asking the Court to assume the worst-

case-scenario for Reed regarding their contents. The Court cannot do so when

resolving a Rule 12(b)(6) motion to dismiss.

       Nor does the Court view the allegation that Reed’s Legal Department

Notices were received by OpenAI’s legal department—rather than unspecified

engineers responsible for OpenAI AI’s outputs—as facially deficient.                    OpenAI



128
    The Court notes OpenAI’s argument that Reed should have pled how OpenAI could have
remedied the issue. OB at 35. OpenAI does not provide any caselaw support for its contention that
Reed should have done so. Nor is the Court aware of any binding caselaw imposing this burden
on Reed at the pleadings stage.
129
    See Biro, 963 F.Supp.2d at 278 (noting that evidence a defendant knew or suspected an
erroneous publication but refused to acknowledge it can support a finding of actual malice).
130
    US Dominion, 2022 WL 2229781, at *4 (citing Cent. Mortg., 27 A.3d at 535).
                                               29
presented no binding caselaw imposing an affirmative duty for Reed to give

notice of the false outputs to the persons responsible at OpenAI directly. Instead,

Reed is obliged to ultimately prove that the persons responsible at OpenAI acted

with actual malice,131 which the evidence may show after discovery. At this stage,

given the dearth of caselaw addressing how the bring home requirement functions

in the context of an alleged AI defamer, the Court is not convinced OpenAI’s legal

department does not include the persons responsible for policing the OpenAI AI

publications. The Court is especially unwilling to make such a proclamation given

that the creation and management of AI tools such as OpenAI AI is certainly a team

effort. Such questions can be resolved after discovery, which comports with the

Supreme Court of the United States’ view that questions regarding actual malice are

not suited for summary disposition.132

       OpenAI contends the Legal Department Notices cannot be relied upon to

support the allegations regarding the representations allegedly published to the two

unidentified individuals who approached Reed.133 OpenAI’s contention asks the

Court to infer that (1) the individuals received false representations before OpenAI

purportedly received notice of the representations’ falsehood via the Legal

Department Notices or (2) that the individual recipients received representations not


131
    Page, 270 A.3d at 844 n. 85 (quoting Dongguk Univ., 734 F.3d at 123).
132
    US Dominion, 2022 WL 2229781, at *10 (quoting Hutchinson, 443 U.S. at 120 n.9).
133
    RB at 19.
                                             30
raised in the Legal Department Notices.134 Once again, OpenAI asks the Court to

infer against the plaintiff at the pleading stage. It is possible the Legal Department

Notices put the proper OpenAI personnel on notice of the falsity of the Outputs, and

that the unidentified individuals read that same defamatory content after OpenAI was

on notice and failed to rectify the issues. The Court will not infer otherwise at this

stage.

         Reed’s allegations that OpenAI AI admitted to being “deliberately

engineered” to defame Reed and that OpenAI received notice of the AI

defamation via X posts and the Legal Department Notices provide some basis for

Reed’s claims to progress to discovery into whether individuals at OpenAI held

actual malice against Reed. Other allegations not explicitly addressed by the

parties in arguing over this issue likewise support Reed’s claims. For example,

Reed alleges OpenAI AI fabricates sources, which courts have determined can

support a finding of actual malice.135

         Given the especially low pleading threshold for malice,136 the generally

plaintiff-friendly canons of Rule 12(b)(6), and the Supreme Court’s caution against

resolving actual malice on summary disposition, the Court will not dismiss

Reed’s claim for failure to plead actual malice at this stage.


134
    Id.
135
    Biro, 963 F.Supp.2d at 277. See, e.g., Compl. ¶ 86.
136
    Del. Sup. Ct. Civ. R. 9(b).
                                               31
      3. Reed pleads damages under both Delaware and Tennessee law.

        The Court now turns to OpenAI’s claims that Reed must plead damages

for defamation under Tennessee law, and that he failed to do so.137 OpenAI contends

Tennessee law imposes an obligation for Reed to plead damages because

Tennessee law does not acknowledge defamation per se, and this creates an outcome

determinative conflict necessitating the selection of a choice of law.138 Reed

disagrees that the conflict is outcome determinative here, contending the Complaint

survives under either jurisdiction’s law.139

        In conducting a conflicts of law analysis, Delaware courts first
        determine if there is an actual conflict between the laws of two or more
        relevant jurisdictions. An actual conflict exists when the outcome of
        the case changes depending upon which jurisdiction’s laws are applied.
        If the outcome of an issue is the same under two jurisdictions’ laws,
        there is a “false conflict,” and a Delaware court should not conduct a
        choice of law analysis. If an actual conflict between the laws of
        multiple jurisdictions exists, Delaware courts determine which
        jurisdiction has the most significant relationship to the case, and apply
        that jurisdiction’s laws.140

Accordingly, the Court will first investigate whether the purported conflict between

Tennessee and Delaware law changes the outcome of this issue.




137
    Tr. at 10:17-11:12.
138
    OB at 18.
139
    AB at 15.
140
    Varsity Brands Hldg. Co. LLC v. Arch Ins. Co., 2025 WL 552500, at *12 (Del. Super. Feb. 19,
2025) (first citing Buhl Bldg., L.L.C. v. Commonwealth Land Title Ins. Co., 2019 WL 3916615, at
*3 (Del. Super. Aug. 19, 2019); and then citing Deuley v. DynCorp Int’l, Inc., 8 A.3d 1156, 1161
(Del. 2010)).
                                              32
       Reed’s styling of his Complaint as a defamation per se action does not

instantly foreclose him from bringing a non-per se action under Tennessee law, as

the Court examines the substance of the Complaint, not its styling.141 The Court

evaluates whether the Complaint substantively complies with Tennessee’s ordinary

defamation elements.

       OpenAI directs the Court to Memphis Pub. Co. v. Nichols, in which the

Supreme Court of Tennessee declared that damages for defamation cannot be

presumed under Tennessee law.142              Based on this, OpenAI argues Reed’s

Complaint fails, as it lacks allegations identifying how Reed’s reputation was

specifically harmed and provides insufficient allegations regarding emotional

distress and other damages.143

       Reed responds by arguing that Tennessee imposes no obligation to plead

specific facts regarding the scope of damages resulting from alleged reputational

harm.144 More specifically, and citing West v. Media Gen. Convergence, Inc.,

Reed emphasizes the Supreme Court of Tennessee’s declaration that “[t]he



141
    See Calumet Cap. P’rs LLC v. Victory Park Cap. Advisors, LLC, 353 A.3d 88, 106 (Del. Ch.
2026) (noting that, under a notice pleading standard, defects of claim styling are not fatal so long
as the appropriate cause of action is pled in substance); see also Kersey v. Wilson, 2006 WL
3952899 (Tenn. Ct. App. Dec. 29, 2006) (addressing the substance of the plaintiff’s purported
defamation per se complaint to see if the elements of defamation were met, even though Tennessee
does not recognize defamation per se).
142
    569 S.W.2d 412, 421 (Tenn. 1978).
143
    OB at 20.
144
    AB at 17-18.
                                                33
plaintiff need not prove special damages or out of pocket losses necessarily, as

evidence of injury to standing in the community, humiliation, or emotional distress

is sufficient.”145

       Considering West v. Media Gen., the Court can find that Reed’s claim

survives a motion to dismiss even absent proof of damages resulting from

reputational harm, provided Reed alleged sufficient facts to show damage in the

form of emotional distress.          Lower Courts in Tennessee have subsequently

reinforced this conclusion.146

       Here, Reed alleges specific, emotionally distressing thoughts he

experiences because of the alleged defamation by OpenAI AI.147 Reed explains

that these thoughts are exacerbated against the backdrop of the assassination of

Charlie Kirk, another political commentator.148 Reed further notes that he has a

history of receiving death threats.149 The Court views these allegations as sufficient

to support a claim for emotional distress damages at this stage in the proceedings,

being sufficiently well-pled to proceed to discovery and flesh out the allegations.




145
    53 S.W.3d 640, 648 (Tenn. 2001) (citation omitted, emphasis added).
146
    See e.g. Austin v. Plese, 2025 WL 763752 (Tenn. Ct. App. Mar. 11, 2025) (modifying judgment
to remove reputational damages but not thereby dismissing defamation claim), appeal
denied (Aug. 7, 2025), cert. denied, 146 S. Ct. 1528 (2026).
147
    Compl. ¶ 95.
148
    Id. ¶ 89.
149
    Id.
                                              34
          OpenAI’s arguments regarding the purported damages deficiencies in the

Complaint fail, as Reed at least alleges injury in the form of emotional distress.

OpenAI offers no argument that Reed’s claims fail under Delaware law. The

Complaint thus survives under both jurisdictions’ laws, so a choice of law analysis

between the two is unnecessary.150

                                         CONCLUSION

          For the reasons explained above, OpenAI’s Motion is DENIED.

IT IS SO ORDERED.




150
      Varsity, 2025 WL 552500, at *12 (citation omitted).
                                                 35


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