The lawsuit by Pride Medical Inc. against Atlanta gay magazine Fenuxe took another nasty turn last week and the medical company accused Fenuxe and its owner of trying to turn the ongoing litigation into a “Jerry Springer”-like atmosphere to avoid revealing what the lawsuit is actually about — alleged fraud by the magazine about its distribution in order to charge advertisers higher rates.
Pride Medical Inc., which is suing Fenuxe and alleges the bi-weekly glossy inflated circulation numbers in order to charge advertisers higher rates, denied in a motion filed Dec. 17 personal allegations made against Dr. Lee Anisman, an owner of Pride Medical, by Tyler Calkins who is the owner and publisher of the gay magazine. Calkins alleged in the counterclaim that, among other things, Anisman threatened to rape him and threatened to ruin his business.
After Pride Medical Medical Inc. filed a lawsuit against Fenuxe Nov. 8 citing alleged fraud by the magazine, the magazine and its parent company TW Media Group LLC fired back in a Dec. 9 response denying those allegations and made numerous personal allegations against Anisman, including saying Anisman groped Calkins, threatened to sexually assault him and also went on a campaign to “destroy” Calkins.
“It is clear from defendant’s proposed counterclaims that defendant is merely attempting to create a nearly ‘Jerry Springer’-like atmosphere to this litigation, in order to embarrass Plaintiff and its owners, and to conceal and obscure public attention upon the fraud which it and Mr. Calkins apparently perpetrated upon their clients and customers, including Plaintiff,” the Dec. 17 motion from Pride Medical Inc. states.
Pride Medical Inc. also denies all the allegations made by Calkins and TW Media Group, LLC, and asserts that Calkins is out to “scandalize” Pride Medical Inc. and Anisman.
Denial of personal allegations
In the section of the Dec. 17 motion titled “Tyler Calkins and Dr. Lee Anisman,” the Pride Medical Inc. defense team alleges Calkins threatened Anisman if he sued Fenuxe over their advertising contract and told Anisman this case would become very “messy” if he filed suit.
“Opposing counsel threatened to bring into this case issues of professional and sexual misconduct by plaintiff’s owner(s), and other matters wholly unrelated to the business disputes between these parties. That is indeed what the defendant has done in the ‘counterclaims’ which it has filed or seeks to file in this action and in its request to join Tyler Calkins and Dr. Lee Anisman personally in this case,” the response states.
According to the response, Pride Medical Inc. began advertising with Fenuxe in June 2010 while Anisman did not meet Calkins, 28, until Dec. 2012 when the two met at a charity function.
“A friendship between them began. That relationship eventually developed into a dating relationship,” the response states. According to the counterclaim filed by Calkins and Fenuxe, a week after Anisman and Calkins met they went to dinner at Atlanta Fish Market and then Anisman invited Calkins to his second home in New York on Dec. 26, 2012.
The response also notes, “Mr. Calkins apparently denies that a dating relationship between the two men ever existed. Plaintiff [Anisman] can provide evidence that the couple took numerous pleasure trips together (a total of at least 8, to New York, Boca Raton, Miami, Palm Beach, San Francisco and Las Vegas). They exchanged literally hundreds of personal phone calls and emails. They sometimes slept in the same bed, especially on trips. They socialized with friends and family as a dating couple. They held hands in public. Their relationship had all the trappings of a dating relationship. If Mr. Calkins now denies that such relationship existed, then it appears that he merely feigned interest in Dr. Anisman and induced him into believing that such a relationship existed, presumably for financial gain.”
Anisman and Calkins discussed entering into a business together to purchase another media publication [The GA Voice]. However, in May, Anisman dropped out of the venture but as a favor to Calkins, he co-signed a $165,000 loan so Calkins could use toward the purchase of the business, according to court documents. The GA Voice owners decided against selling, but, according to the Dec. 17 motion, Calkins used the $165,000 “to pay off his own credit cards or to support his apparently-failing magazine business.”
The Dec. 17 motion goes on to refute Calkins’ counterclaims one-by-one
Pride Medical Inc. in its Dec. 17 motion denies all of Calkins’ counterclaims:
• Alleged theft by extortion by Anisman: Calkins claims Anisman tried to gain control of Fenuxe by making personal threats against Calkins coupled with an offer to purchase his business. Pride Medical and Anisman deny the allegations.
The motion also notes: “The ‘extortion’ alleged by Defendant was actually Dr. Anisman’s good-hearted attempt to pry Tyler Calkins and his company out of the predicament in which they had placed themselves. When confronted by Dr. Anisman with the circulation discrepancies which Dr. Anisman had discovered, Mr. Calkins admitted that his company had not distributed the numbers of magazines reflected in their media kits. But, he refused to admit such facts to the magazine’s advertisers and instead said he would just ‘step down’ from the company. Dr. Anisman offered to purchase Mr. Calkins’ interest in the business for $35,000 plus forgiveness of the $165,000 loan which Dr. Anisman had co-signed. Mr Calkins declined.”
• Alleged intentional infliction of emotional distress by Anisman: “Most spuriously, defendant claims that Dr. Anisman inflicted emotional distress on Mr. Calkins by threatening to ‘rape’ him, based solely upon the alleged comment that Dr. Anisman could ‘make him a bottom’ and that he threatened to ‘out’ Mr. Calkins to his family,” states the response.
Anisman denies such threats were made but “even if the suggested sexual language was used, it does not imply a threat of ‘sexual assault’ or ‘rape.’ ‘I could make you a bottom’ is not synonymous with ‘I plan to rape you,'” the motion states.
Calkins’ allegation that Anisman threatened to “out” Calkins also has no merits, according to the motion, because Calkins has been an out gay man operating a gay-oriented magazine. Also, the motion notes, Calkins wrote in an article in Fenuxe on April 11, 2013, that he had come out to his family when he was 22.
• Alleged assault by Anisman: “This claim also apparently stems from the ‘bottom’ language allegedly used by Dr. Anisman that Dr. Anisman allegedly tried to ‘grope’ him once while on a trip together. Those events never occurred,” the motion states.
“Even if they did occur, they did not amount to assault. Notably, no actual sex ever occurred between Dr. Anisman and Mr. Calkins and none is alleged in the subject counterclaims. It will be impossible for Tyler Calkins to sustain a claim of ‘assault’ based upon the alleged ‘groping’ incident, when he regularly shared Dr. Anisman’s bed on pleasure trips by the couple,” states the motion.
• Allegations of RICO (Racketeer Influenced and Corrupt Organizations Act) against Anisman and Pride Medical Inc.: “This is the most preposterous claim, especially given Defendant’s inability to even describe predicate acts which would surface to the level of claims necessary to support a RICO case,” the motion states. “Defendant is trying to interject RICO claims into a dispute (which itself is irrelevant to this case) essentially about the break-up of a dating relationship. That was not what RICO was designed to do.”
• Alleged negligent retention against Pride Medical Inc.: “Here also purely for spite, Defendant tries to resurrect in the public eye information about malpractice and related lawsuits that were filed against Defendant and Dr. Anisman more than 13 years ago, and which were settled between parties at that time,” the motion states.
Anisman and Pride Medical Inc. was sued by a Tony Beane for allegedly fondling his genitals during an examination and according to stories in 2000 and 2003 in the former Southern Voice newspaper, Anisman settled lawsuits with Beane and two other patients.
“Defendant apparently wants to hold Pride Medical Inc. responsible for the fact that Dr. Anisman dated, or in Defendant’s opinion ‘pursued,’ Tyler Calkins. This makes no cognizable cause of action against Plaintiff. Tyler Calkins and Dr. Anisman were already dating when Mr. Calkins sought medical treatment from Pride Medical Inc.,” the motion explains.
“Consistent with their growing relationship, Mr. Calkins authorized Dr. Anisman to have access to his medical records. But Dr. Anisman never accessed or had any need to access such records,” according to the Dec. 17 motion.
“Whatever liabilities Dr. Anisman does or does not have in relation to his personal relationship with Tyler Calkins they do not involve Pride Medical Inc.,” the motion states.
Pride Medical Inc.’s ‘statement of facts’
Pride Medical Inc. entered into a contract with Fenuxe on April 27, 2010, to run advertisements in the gay magazine, according to court documents. The contract was for Pride Medical Inc. to pay $696.50 bi-weekly for one full-page ad and two half-page ads. To date, Pride Medical has paid Fenuxe more than $72,000 for these ads, the Dec. 17 response states.
Fenuxe began publishing April 22, 2010, and to secure advertisements from Pride Medical Inc., Fenuxe told the medical company that it was already publishing and distributing at least 20,000 copies of the magazine every other week, according to the lawsuit. Pride Medical began actually advertising on or about June 5, 2010, according to the suit.
A media kit provided to Pride Medical Inc. stated “each issue of Fenuxe is read by over 70,000 readers” ― a number derived from the 20,000 copies printed every two weeks with 3.5 readers per copy as deemed by a BPA audit (www.bpaww.com ), the suit states. However, Fenuxe has never submitted its publication for a BPA audit, according to the suit.
“Although the parties’ contract admittedly contained no reference to the exact numbers of magazines being published, Plaintiff would not have contracted to advertise in Fenuxe if it had not been for such representations by Defendant as to its impressive distribution levels; or; it would have considered different rates for the advertising it was buying,” Pride Medical says in court documents.
Based on Fenuxe’s claims of its distribution, Pride Medical Inc. advertised in Fenuxe in 2010 through Oct. 10, 2013, at the rates stated in the contract. But in October 2012, Fenuxe stopped publishing one of the two half-page ads and Pride Medical Inc. seeks an adjustment to its account for the ads not published, according to the motion.
Pride Medical Inc. also paid for stickers to be applied to the cover of Fenuxe of the Feb. 28, 2013, edition of the magazine and was quoted a price and paid for 25,000 stickers to be placed on 25,000 copies, according to the motion.
“Unbeknownst to plaintiff at that time, less than 11,000 magazines and stickers were printed for such issue,” states the motion. “Defendant never informed Plaintiff about the shortfall in its printing and it never refunded any of Plaintiff’s money paid for the stickers that were never printed or applied. Similar problems occurred with regard to the magazine’s ‘Gay Pride’ [Atlanta Pride, held this year Oct. 12-13] edition.”
The motion further states that Fenuxe’s 2011 media kit (that includes advertising rates and circulation numbers) reported it was printing and distributing 15,000 copies every two weeks. In 2012 the media kit also reported it was distributing 15,000 copies every two weeks but in 2013 the printing and distribution numbers jumped to 25,000 copies, according to the motion.
Pride Medical Inc. became suspicious of the numbers, the motion states, and on Oct. 14, 2013, Anisman contacted Fenuxe’s then-current printer, Rose Printing Company Inc. [located in Tallahassee, Fla.], “who shared with Plaintiff that Defendant had never ordered more than 13,000 magazines printed for any given edition, and usually ordered only about 10,000 copies, less than 40 percent of what it was representing to its advertisers.”
Pride Medical Inc. learned from Rose Printing Company Inc. that the highest number of magazines Fenuxe ever ordered was 13,389 for the Gay Pride edition and normally only ordered about 10,000 copies, according to the motion. “Defendant never ordered from Rose as much as 25,500 copies of its magazine, despite the representations contained in its 2013 media kit,” the motion states.
The motion outlines that in the days leading up to Atlanta Pride, Fenuxe promised Pride Medical Inc. it would be distributing at least 30,000 issues over the weekend and Pride Medical Inc. agreed to purchase 30,000 stickers to be placed individually on each magazine cover.
“When the magazine was delayed some two days, [Fenuxe] promised [Pride Medical Inc.] and its other advertisers that an additional 3,500 copies would be printed and distributed. Again, only 13,389 magazines were ever printed,” the motion states.
Pride Medical Inc. acknowledges in the motion that Rose Printing Company Inc. only started printing Fenuxe beginning in June 2013. Pride Medical Inc. is seeking information from Fenuxe’s past printers but has they have not yet responded, the motion notes. However, Rose Printing Company Inc.’s statements raised suspicions with Pride Medical Inc. and prompted the company to start asking questions about Fenuxe’s circulation numbers.
Pride Medical Inc. sent a letter to Fenuxe on Oct. 28, 2013, asking for Fenuxe’s circulation numbers, the motion states. Fenuxe declined to produce the numbers which led Pride Medical Inc. to file a lawsuit to get the documentation.
“This is what the lawsuit is about: Magazine circulation and advertising disputes,” the motion states.
Pride Medical Inc.’s attorney Patrick McCrary declined comment as did Anisman.
Tyler Calkins and his attorney, Todd Poole, could not be immediately reached for comment.