Gilman v. Spitzer et al
Filing
26
REPLY MEMORANDUM OF LAW in Support re: 16 MOTION for Judgment on the Pleadings.. Document filed by Eliot Spitzer, The Slate Law Group, LLC. (Brown, Jay)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
WILLIAM GILMAN,
Plaintiff/Counterclaim Defendant,
No. 11 Civ 5843 (JPO)
ECF Case
v.
ELIOT SPITZER and THE SLATE GROUP,
LLC,
ORAL ARGUMENT
REQUESTED
Defendants/Counterclaimants.
REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS’
MOTION FOR JUDGMENT ON THE PLEADINGS
OF COUNSEL:
Eric Lieberman
James A. McLaughlin
THE WASHINGTON POST COMPANY
1150 Fifteenth Street, NW
Washington, DC 20071-7301
Telephone: (202) 334-6000
Facsimile: (202) 334-5075
mclaughlinj@washpost.com
liebermane@washpost.com
Lee Levine, pro hac vice
Jay Ward Brown, Bar No. JB-4376
Katharine Larsen, Bar No. KL-6153
LEVINE SULLIVAN KOCH & SCHULZ, LLP
1050 Seventeenth Street, NW, Suite 800
Washington, DC 20036
Telephone: (202) 508-1100
Facsimile: (202) 861-9888
llevine@lskslaw.com
jbrown@lskslaw.com
klarsen@lskslaw.com
Counsel for Defendants/Counterclaimants
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................................... ii
I.
DEFENDANTS’ MOTION IS NOT PREMATURE ....................................................... 1
II.
NEITHER OF THE CHALLENGED STATEMENTS REASONABLY
CAN BE UNDERSTOOD AS “OF AND CONCERNING” GILMAN ........................... 2
III.
GILMAN IS UNABLE TO DIVEST DEFENDANTS OF THE
PRIVILEGE PROTECTING FAIR AND TRUE REPORTS OF
JUDICIAL PROCEEDINGS........................................................................................... 7
i
TABLE OF AUTHORITIES
CASES
PAGE(S)
Abramson v. Pataki,
278 F.3d 93 (2d Cir. 2002).................................................................................................... 5
Algarin v. Wallkill,
421 F.3d 137 (2d Cir. 2005).................................................................................................. 5
Becher v. Troy Publ’g Co.,
589 N.Y.S.2d 644 (3d Dep’t 1992) ..................................................................................... 10
Brady v. Ottoway Newspapers, Inc.,
445 N.Y.S.2d 786 (2d Dep’t 1981) ....................................................................................... 6
De Malmanche v. Glenrock Asset Mgmt. Assocs., L.P.,
No. 07 Civ. 10940 (KNF), 2011 WL 990165 (S.D.N.Y. Mar. 16, 2011)................................ 1
Diaz v. NBC Universal, Inc.,
337 Fed. App’x 94 (2d Cir. 2009) ..................................................................................... 5, 6
Friends of Rockland Shelter Animals, Inc. v. Mullen,
313 F. Supp. 2d 339 (S.D.N.Y. 2004) ................................................................................... 1
Gonzalez v. Gray,
69 F. Supp. 2d 561 (S.D.N.Y. 1999),
aff’d, 216 F.3d 1072 (2d Cir. 2000)................................................................................... 7, 8
Gristede’s Foods, Inc. v. Poospatuck (Unkechauge) Nation,
No. 06-cv-1260 (KAM), 2009 WL 4547792 (E.D.N.Y. Dec. 1, 2009)................................. 10
Kirch v. Liberty Media Corp.,
449 F.3d 388 (2d Cir. 2006).................................................................................................. 5
Nekos v. Kraus,
878 N.Y.S.2d 827 (3d Dep’t 2009) ....................................................................................... 3
New York Times Co. v. Sullivan,
376 U.S. 254 (1964).............................................................................................................. 5
Ocean State Seafood, Inc. v. Capital Newspaper,
492 N.Y.S.2d 175 (3d Dep’t 1985) ..................................................................................... 10
People v. Gilman,
28 Misc. 3d 1217(A), 2010 WL 3036983 (N.Y. Sup. Ct. N.Y. Cty. July 2, 2010).........8, 9, 10
ii
Provident Life & Cas. Ins. Co. v. Ginther,
No. 96-CV-0315E(H), 1997 WL 9779 (W.D.N.Y. Jan. 3, 1997) ........................................... 1
Rinaldi v. Holt, Rinehart & Winston, Inc.,
42 N.Y.2d 369 (1977) ........................................................................................................... 5
Staehr v. Hartford Fin. Servs. Grp.,
547 F.3d 406 (2d Cir. 2008).................................................................................................. 9
White v. Fraternal Order of Police,
707 F. Supp. 579 (D.D.C. 1989),
aff’d in relevant part, 909 F.2d 512 (D.C. Cir. 1990) ............................................................ 3
OTHER AUTHORITIES
Fed. R. Evid. 801(a) & (c) .......................................................................................................... 9
R. SACK, LIBEL, SLANDER AND RELATED PROBLEMS § 16:2.1 (2011) .......................................... 1
RESTATEMENT (SECOND) OF TORTS § 564 cmt. f ......................................................................... 5
iii
Defendants respectfully submit this reply in support of their Motion for Judgment on the
Pleadings (“Motion”).
I. DEFENDANTS’ MOTION IS NOT PREMATURE
Plaintiff William Gilman argues that the Motion should be denied because he has not yet
filed a responsive pleading to Defendants’ Counterclaim and, as a result, the pleadings are not
yet “closed” within the meaning of Rule 12(c). See Pl.’s Mem. of Law in Opp. to Defs.’ Mot. for
J. on Pldgs. (“Opp.”) at 9-10 (citing Wright & Miller treatise). In a case like this one—i.e.,
where the counterclaim to which plaintiff has not pleaded is one seeking attorneys’ fees under
New York’s anti-SLAPP statute—this Court’s precedent is to the contrary. Friends of Rockland
Shelter Animals, Inc. v. Mullen, 313 F. Supp. 2d 339, 345 (S.D.N.Y. 2004).1 Even were the law
otherwise, the Court retains ample authority to convert the Motion to one for summary judgment
pursuant to Rule 56. And, needless to say, Gilman’s premise—i.e., that Defendants may not
challenge the threshold viability of his Complaint until his own motion to dismiss their
counterclaim has been adjudicated—is difficult to reconcile with his previous insistence on
commencing discovery promptly following the filing of this reply brief. See Joint Letter to Court
(Oct. 21, 2011).2
1
See also, e.g., De Malmanche v. Glenrock Asset Mgmt. Assocs., L.P., No. 07 Civ. 10940 (KNF), 2011 WL
990165, at *1 n.1 (S.D.N.Y. Mar. 16, 2011) (observing that court had granted defendant’s Rule 12(c) motion filed
before pleadings were formally closed because “no useful purpose existed in dismissing the motion without
prejudice”); Provident Life & Cas. Ins. Co. v. Ginther, No. 96-CV-0315E(H), 1997 WL 9779, at *1 (W.D.N.Y.
Jan. 3, 1997) (where defendant filed answer and counterclaim simultaneously with motion to dismiss, court treated
motion as one for judgment on pleadings and, despite having been filed prior to reply to counterclaim, decided
motion because “neither party will be prejudiced if this Court rules on the merits”).
2
As Defendants have explained, it is to guard against the misuse of defamation litigation to punish
protected expression that the First Amendment looks with favor on early, potentially dispositive motions in cases,
like this one, involving speech about matters of public concern. Mem. at 11 (citing cases). Gilman’s contrary
contention notwithstanding, this principle applies as fully to motions brought under Rule 12 as it does to those
litigated under Rule 56. See R. SACK, LIBEL, SLANDER AND RELATED PROBLEMS § 16:2.1 (2011) (“[C]ourts
routinely consider on motions to dismiss issues such as whether the statement at bar is capable of bearing a
defamatory meaning, whether it is ‘of and concerning’ the plaintiff, . . . and whether the suit is barred by privilege
and frequently grant motions on these grounds and others.”).
1
II. NEITHER OF THE CHALLENGED STATEMENTS REASONABLY CAN BE
UNDERSTOOD AS “OF AND CONCERNING” GILMAN
Gilman objects to “analyz[ing] the defamation as two fragmented provisions.” Opp. at
10; see also id. at 13 (chastising Defendants for “bifurcat[ing] the defamatory statement, a single
sentence, into a ‘First[]’ and a ‘Second Challenged Statement’”). This, however, is how Gilman
pled his own cause of action. Compare Compl. ¶¶ 27-28 (identifying First Challenged
Statement) with id. ¶¶ 29-34 (identifying Second Challenged Statement). That said, Defendants
agree that the Court must consider the publication as a whole and review the two challenged
statements in context and according to their natural meaning. Mem. in Support of Defs.’ Mot.
for J. on Pldgs. (“Mem.”) at 12-13 (citing cases). So construed, no reasonable reader would
understand the allegedly defamatory sting of either statement to be “of and concerning” Gilman.
First, Gilman argues that (1) readers would understand the statements to refer to him
because Spitzer also wrote that “two of the cases against employees of [Marsh] were dismissed
after the defendants had been convicted,” Opp. at 1-2, 5-7, and (2) since Gilman can therefore be
identified as an “individual[] covered by the communication, a defamation action is allowed,” id.
at 11-12 (emphasis added). This is not the law: Gilman must show that a reasonable reader
would have understood the allegedly defamatory statements to be of and concerning him.
In this regard, Gilman mischaracterizes the thrust of the piece as an effort by Defendant
Spitzer to justify the criminal case against Gilman. The Wall Street Journal editorial that
prompted Spitzer’s rebuttal invoked the decision vacating Gilman’s conviction (although it did
not name him either) as a point of departure to criticize Spitzer’s broader investigation of the
insurance industry. In the piece, Spitzer, like the Journal, focused on the importance and success
of his investigation of another company, AIG, and its chairman Hank Greenberg. In so doing,
Spitzer noted that the Journal also had been wrong to suggest that his related investigation of
2
Marsh was a failure, not least because Greenberg’s son had been removed from his position as
Marsh’s CEO in its wake. It was in this context that Spitzer acknowledged, as the Journal
recognized, that two convictions resulting from his investigation had been set aside. Then, in
what Gilman contends is the first false and defamatory statement about him, Spitzer notes that
these were not the only cases brought, criticizing the Journal for “fail[ing] to note the many
employees of Marsh who have been convicted and sentenced to jail terms.” Compl. ¶¶ 27-28.
Gilman contends that reasonable readers would have understood this passage as an
assertion he was guilty notwithstanding that his conviction had been vacated. Id. To support this
argument, Gilman rewrites the piece itself, claiming that Spitzer wrote that “Gilman’s conviction
was overturned on a technicality” and “that the technicality does not mean that Gilman and [his
co-defendant] were innocent.” Opp. at 12; see also id. at 7, 13. The piece, however, says no
such thing. And it is well settled that any “impression,” id. at 20, drawn by a reader to that effect
from the statements actually made is not actionable as a matter of law. In Nekos v. Kraus, 878
N.Y.S.2d 827 (3d Dep’t 2009), for example, the Appellate Division dismissed a defamation
action arising from a flyer that described the criminal charges of which plaintiff had been
convicted, while simultaneously asserting that the fact an appellate court had thereafter reversed
the conviction on procedural grounds “‘doesn’t mean the underlying facts aren’t true.’” Id. at
828. The court explained that the prospect a reader might conclude from the flyer that plaintiff
had committed a crime did not render it actionable. Id. at 829 (“The flyer’s words . . . are not
literally false. Rather, they accurately state the fact that the reversal of a criminal conviction due
to procedural errors does not render judgment upon the substantive merits of the charges.”).3
3
Accord, e.g., White v. Fraternal Order of Police, 707 F. Supp. 579, 589 n.12 (D.D.C. 1989) (“If a
newspaper accurately reported that an individual was arrested and charged with a crime, a reader could reasonably
infer, i.e., guess, surmise, or derive as a probability, that the individual actually committed the crime. However,
unless the newspaper article, considered as a whole, in context, could be reasonably understood to express that the
3
Second, Gilman all but concedes that, had Spitzer instead written that “the editorial fails
to note the many other employees of Marsh who have been convicted and sentenced,” he would
have no claim, because readers would in that event have understood him as referring to Marsh
employees other than Gilman. See Opp. at 14. But, reasonably construed, the paragraph as
published communicates the same meaning. It logically must be read to refer to different Marsh
employees other than the “two” who had just been described in the previous sentence as having
had their convictions dismissed—otherwise, the Journal, which itself had referenced the
decision to vacate Gilman’s conviction, could not have been said by Spitzer to have “failed” to
note these other employees’ convictions. This observation applies equally to the second passage:
its reference to “Marsh and its employees” necessarily must refer to employees other than the
“two” against whom charges had been dismissed, since Spitzer expressly criticizes the Journal
(which had mentioned the vacated Gilman conviction) for failing to reference the successful
proceedings against Marsh and others of its employees.4
Third, Gilman devotes the lion’s share of his argument to the proposition that he may
pursue his claim over the second challenged statement because the group of “employees” to
which it could possibly refer is so small as to afford each member of it a cause of action. Opp. at
15-18. Once again, Gilman has misstated applicable law.
(a) Gilman relies almost exclusively on cases decided between 1840 and 1963 for the
proposition that a defamatory statement regarding a group of limited size provides a viable basis
individual in fact committed the crime, the newspaper report would not be actionable[.]”), aff’d in relevant part, 909
F.2d 512 (D.C. Cir. 1990)
4
Gilman asserts repeatedly that the piece’s reference to “jail terms” is false. Opp. at 5, 12, 14. This
contention is irrelevant to the issue presented by the Motion, which is whether the reference is of and concerning
Gilman and, for the reasons just stated, it plainly is not. Moreover, the contention is premised on a sleight of hand:
Gilman maintains that it was false for Spitzer to have stated that Marsh employees “served jail time,” id. at 7, but
what Spitzer actually wrote was that some Marsh employees had been “sentenced to jail time.” And whether anyone
“was ultimately sentenced to jail,” as Gilman elsewhere hedges his allegation of falsity, id. at 5 (emphasis added), is
for the same reason also beside the point—it is not what the piece says.
4
at common law for a defamation action by each member of that group. Id. In 1964, however,
the Supreme Court held that the First Amendment imposes substantive limitations on the
common law of defamation where the speech at issue addresses a matter of public concern,
including a requirement that there be a much closer nexus between a defamatory statement and
the defamation plaintiff. Specifically, in New York Times Co. v. Sullivan, 376 U.S. 254, 258, 291
(1964), the Court held that the First Amendment protected a newspaper advertisement that
accused Montgomery, Alabama police “of answering Dr. [Martin Luther] King’s protests with
‘intimidation and violence’” because it was not, as a matter of constitutional law, “of and
concerning” plaintiff, the supervisor of the city’s police department (who was not otherwise
named in the publication). The Court so held despite the fact that, at Alabama common law,
testimony by witnesses who understood the advertisement to refer to plaintiff was sufficient to
sustain a jury verdict in his favor. Id. See Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d
369, 379 (1977) (“More recent decisions make clear the great extent to which [Sullivan] and its
progeny have altered traditional rules governing libel actions.”). The Second Circuit has
repeatedly invoked Sullivan in support of the proposition that “an individual plaintiff must be
clearly identifiable” in an allegedly defamatory statement about a matter of public concern “to
support a claim for defamation.” Algarin v. Wallkill, 421 F.3d 137, 139 (2d Cir. 2005) (emphasis
added) (citations omitted); accord Abramson v. Pataki, 278 F.3d 93, 102 (2d Cir. 2002).5
(b) Even in cases governed solely by the common law, Gilman’s tactic of redefining the
group to which the piece refers in an effort to make it small enough to be said plausibly to focus
5
See also Diaz v. NBC Universal, Inc., 337 Fed. App'x 94, 96 (2d Cir. 2009) (“As a threshold, and
constitutional, matter, a plaintiff alleging defamation must demonstrate that the allegedly defamatory statement was
‘of and concerning’ him or her.”); Kirch v. Liberty Media Corp., 449 F.3d 388, 400 n.2 (2d Cir. 2006) (“of and
concerning” requirement serves to protect “freedom of speech and of the press”); RESTATEMENT (SECOND) OF
TORTS § 564 cmt. f (1977) (“The common law position was that if the recipient reasonably understood the
communication to be made concerning the plaintiff, the defamer was subject to liability . . . . This position is now
held to be in violation of the First Amendment[.]”).
5
on him—here, by claiming the piece would be understood as referring only to those Marsh
employees who had been indicted—has been repeatedly rejected, for good reason. Indeed, in
Brady v. Ottoway Newspapers, Inc., 445 N.Y.S.2d 786 (2d Dep’t 1981), one of the cases on
which Gilman relies in explicating the common law, the court explained that “the group to which
the allegedly defamatory comment refers must be isolated by the standards set forth or implied in
the comment. . . . Imputation to the plaintiff will be evaluated in relation to the group as defined
by the comment and not by the plaintiff’s relationship to a smaller subset of the group defined.”
Id. at 793. Similarly, in Diaz v. NBC Universal, Inc., 337 Fed. App'x 94 (2d Cir. 2009), the
plaintiff police officers objected to the portrayal in a film of their 400-person department as
corrupt. To avoid dismissal, they argued that the statement should be understood to refer only to
a nine-member team, of which they were members, that was involved in some of the events
portrayed. The Second Circuit rejected this argument, concluding that, “[b]y seeking to limit the
group referenced in [the film] to the nine-member search team, [plaintiffs] arguably seek to do
just what Brady prohibits, i.e., they seek to define the group by standards outside the comment.”
Id. at 95.
Gilman’s efforts to limit the group actually referenced in the second statement to those
Marsh employees who had been indicted cannot reasonably be squared with the passage’s plain
language, which references only “Marsh’s behavior” and wrongdoing by “Marsh and its
employees” and does so in only the most general terms. Moreover, it cannot be reconciled with
the sentence that immediately follows it, in which Spitzer makes explicit that he is broadly
referring to wrongdoing by “Marsh as a company,” not singling out individual employees. All of
these references are part of the context in which the statement must be construed, and their
presence in the piece underscores that it cannot reasonably be read to single out Gilman or any
6
other reasonably identifiable subset of Marsh employees. Indeed, as Gilman recently has
conceded in the related case he has filed against Marsh in this Court, the State alleged “improper
conduct by several divisions of Marsh,” conduct which, by his own admission, “implicated
dozens of employees.” Opp. to Marsh Mot. to Dismiss at 5 (emphasis added).
III.
GILMAN IS UNABLE TO DIVEST DEFENDANTS OF THE PRIVILEGE
PROTECTING FAIR AND TRUE REPORTS OF JUDICIAL PROCEEDINGS
Under New York law, a report describing judicial proceedings is absolutely privileged
against a defamation claim if it accurately conveys the gist of a litigant’s allegations, and this is
so even if those allegations ultimately prove to be false. Mem. at 19-20. A court properly
evaluates an assertion of the privilege by comparing the published report to the record in the
proceedings, being mindful that an article is not a legal brief and need not convey the issues with
the same precision expected in a pleading. Id. at 20-21. For his part, Gilman does not take issue
with any of the cases on which Defendants rely, arguing instead that the “facts” do not support
application of the privilege in this case for various reasons. Opp. at 18-23.
First, Gilman contends that the piece does not qualify as a report about judicial
proceedings. Id. at 18-19. This contention cannot be squared with the piece’s plain language,
which expressly presents Spitzer’s defense of the propriety and social utility of a set of judicial
proceedings initiated by his office. The statements sued upon are introduced as relating to “the
cases my office brought against Marsh & McLennan,” and he thereafter refers expressly to both
the criminal and civil proceedings involving Marsh and its employees. No reasonable reader
confronted with the piece’s actual language could fail to grasp that it concerned these specifically
referenced judicial proceedings. As the court explained in Gonzalez v. Gray, 69 F. Supp. 2d 561
(S.D.N.Y. 1999), aff’d, 216 F.3d 1072 (2d Cir. 2000), the relevant question is simply whether “a
reasonable viewer would understand the [challenged s]tatements to be reports of a judicial
7
proceeding.” Id. at 570. That an author may choose to “situate [such a report] within a broader
context,” as Spitzer did here, does not vitiate the privilege as a matter of law. Id.
Second, Gilman persists in claiming that the piece, published in August 2010, is not a
“fair” description of the proceeding against him given Justice Yates’ July 2, 2010 opinion
vacating his conviction. Opp. at 2 n.1; see id. at 21. There are multiple problems with this
assertion. For one thing, Gilman mischaracterizes the substance of even the publicly available
portions of Justice Yates’ opinion. See, e.g., Compl. ¶ 18, Opp. at 1, 4.6 Specifically, he has
omitted from each of his multiple quotations of the portion of that opinion addressing the
“probability” of a “different result” Justice Yates’ express disclaimer, which immediately
precedes the language Gilman quotes, that he “has not and will not attempt to ask whether, in the
Court’s mind, the verdict would have been different if the new disclosures had been presented.”
People v. Gilman, 28 Misc. 3d 1217(A), 2010 WL 3036983, at *19-21 (N.Y. Sup. Ct. N.Y. Cty.
July 2, 2010). For another, at the time Spitzer authored the piece, the State had appealed from
Justice Yates’ July 2, 2010 order and it could, all apart from that appeal, have retried Gilman at
any time. Mem. at 5-6. When the piece was published, therefore, the criminal charge on which
Gilman had been convicted remained pending.
It is for this reason that Gilman is simply wrong when he argues that the piece produced
“a different effect on the mind of the reader than if the reader” had both attended his trial and
read Justice Yates’ opinion. Opp. at 20. Anyone who attended Gilman’s trial would have heard
6
The publicly available version of Justice Yates’ opinion is heavily redacted in material respects, omitting
those portions of it in which he describes the evidence that prosecutors had withheld. See People v. Gilman, 28
Misc. 3d 1217(A), 2010 WL 3036983, at *4, 7-11, 18-19 (N.Y. Sup. Ct. N.Y. Cty. July 2, 2010). Although Gilman
is in possession of an unredacted version, and has in fact submitted it to this Court under seal in his related case
against Marsh, see Opp. to Marsh Mot. to Dismiss at 8 n.3, he has declined to make a copy available to Defendants,
see Decl. of Katharine Larsen ¶¶ 1-2 & Exs. A-B (correspondence between counsel). Because the cases were tried
long after Spitzer had completed his tenure as Attorney General, and he therefore has no knowledge of the contents
of the documents prosecutors subsequently failed to produce, Defendants have no access to either the documents or
their substance as apparently reflected in the unredacted version of Justice Yates’ opinion.
8
and seen detailed evidence of his personal involvement as “enforcer” of a bid-rigging scheme.
Mem. at 4-6 (citing trial record). And, anyone who read Justice Yates’ opinion would have
learned that, because of prosecutors’ failure to provide to the defense potentially material
documents, the conviction (but not the indictment) had been set aside. For the privilege to apply,
it is sufficient that, at the time of publication, the criminal charge against Gilman remained
unresolved and that the piece accurately described both the gist of the pending charge and the
then-current status of the proceeding. The record in the criminal case confirms it did. 7
Third, Gilman argues that the piece accuses him of more serious wrongdoing than was
alleged in the criminal indictment because of its specific reference to “‘Marsh and its employees
pocket[ing] the increased fees and kickbacks.’” Opp. at 21-22. The judicial record, however,
confirms that Gilman was charged with felony bid-rigging, the motive for which was the
payment to Marsh of greatly increased “contingent commissions”—a type of payment that, while
not by itself illegal, was described by the Second Circuit with reference to this very scheme as “a
euphemism for kickbacks.” Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 408 (2d Cir.
2008); see also Ans. Ex. 2 (State’s appeal brief in People v. Gilman outlines scheme and
motive). It cannot be disputed that Marsh “pocketed” the increased fees, or “kickbacks,” paid to
it, and it is likewise true, albeit hyperbolically so, that its employees “pocketed” benefits as a
result, in the form of higher compensation resulting from Marsh’s increased profits. Gilman’s
contention that reasonable readers would understand this phrase to be an allegation that Gilman
personally had accepted bribes from insurance companies for his private benefit simply stretches
7
Gilman argues that his Indictment and the record of the judicial proceedings against him and Marsh
contain hearsay and “should not be considered as evidence at any state of the proceeding.” Opp. at 8 n.8. To the
contrary, statements in such documents are not hearsay where, as here, they are not offered as proof of the truth of
the matters asserted in them. Fed. R. Evid. 801(a) & (c). Defendants cite to and quote from the record in the
underlying judicial proceedings to prove, for purposes of invoking the privilege, that the statements therein were
made, and when they were made. Such statements are not hearsay in the first instance.
9
the actual language beyond its natural breaking point.8 But even if a reasonable reader could
construe the phrase as an allegation that Gilman personally made money from the criminal
scheme, it still would not divest Defendants of the privilege because such a construction
accurately reflects the allegation actually made against him in the criminal proceeding. Larsen
Decl. ¶ 4 and Ex. C, 8-16 (State presented evidence showing that Gilman’s compensation was
linked to level of “contingent commissions” his department generated, that these commissions
provided motive for his criminal conduct, and that his conduct “brought millions of dollars to
Marsh at the expense of its clients” while Gilman personally prospered as result).9
In the final analysis, the piece tracks closely the allegations made in the multiple
proceedings instituted against Marsh and its employees, including in the indictment of and
evidence presented against Gilman. Accordingly, if the challenged statements can be understood
to be about Gilman at all, the piece “was ‘merely restating [the State’s] position’ in the action”
against him, which remained pending at the time of publication, and such a restatement is
privileged as a matter of law. Gristede’s Foods, Inc. v. Poospatuck (Unkechauge) Nation, No.
06-cv-1260 (KAM), 2009 WL 4547792, at *17 (E.D.N.Y. Dec. 1, 2009) (citation omitted).10
8
See, e.g., Becher v. Troy Publ’g Co., 589 N.Y.S.2d 644, 647 (3d Dep’t 1992) (“[n]ewspapers cannot be
held to a standard of strict accountability for use of legal terms of art in a way that is not precisely or technically
correct by every possible definition. Were it otherwise, the narrow and confining application of the libel laws would
entirely defeat the purposes of [the fair report privilege] . . . . Hence, in areas of doubt and conflicting
considerations, it is almost always preferable to err on the side of free expression[.]” (citations omitted))
9
Gilman further contends that it was false for Spitzer to have written that Marsh stood accused of having
“harmed” its customers. But even Gilman concedes, as he must, that Marsh publicly apologized for wrongdoing by
its employees and agreed to pay nearly $1 billion in what Justice Yates described as “restitution to its customers” to
make them whole for the inflated premiums they had been obliged to pay. Opp. at 3 & n.2; People v. Gilman, 28
Misc. 3d 1217(A), at *1 n.4.
10
Gilman’s citation to Ocean State Seafood, Inc. v. Capital Newspaper, 492 N.Y.S.2d 175 (3d Dep’t 1985),
is particularly inapt. There, a news article allegedly contained multiple false statements about a food distributor,
including that it had purchased clams illegally on the black market, that the clams had poisoned large numbers of
people, and that it had violated state labeling laws. Id. at 177. The court held that the fair report privilege did not
apply because the report falsely asserted that that the distributor had been fined for all of the alleged wrongdoing
when, in fact, the fine was imposed in a proceeding that had addressed only the labeling violation. Id. at 178-79.
10
Dated: January 6, 2012
Respectfully submitted,
LEVINE SULLIVAN KOCH & SCHULZ, LLP
By:
OF COUNSEL:
Eric Lieberman
James A. McLaughlin
THE WASHINGTON POST COMPANY
1150 Fifteenth Street, NW
Washington, DC 20071-7301
Telephone: (202) 334-6000
Facsimile: (202) 334-5075
mclaughlinj@washpost.com
liebermane@washpost.com
s/Jay Ward Brown
Lee Levine, pro hac vice
Jay Ward Brown, Bar No. JB-4376
Katharine Larsen, Bar No. KL-6153
1050 Seventeenth Street, NW, Suite 800
Washington, DC 20036
Telephone: (202) 508-1100
Facsimile: (202) 861-9888
llevine@lskslaw.com
jbrown@lskslaw.com
klarsen@lskslaw.com
Counsel for Defendants/Counterclaimants
11
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Reply Memorandum in Support of
Defendants’ Motion for Judgment on the Pleadings was served via the Court’s CM/ECF system
this 6th day of January 2012 upon the following:
Jeffrey L. Liddle
James W. Halter
LIDDLE & ROBINSON, L.L.P.
800 Third Avenue
New York, NY 10022
Counsel for Plaintiff/Counterclaim Defendant
s/Jay Ward Brown
Jay Ward Brown
12
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