216 A.3d 71
N.H.2019Background
- Plaintiff Automated Transactions, LLC (ATL) and inventor David Barcelou developed ATM-related patents and licensed/enforced them; ATL generated substantial licensing revenue but later faced challenges and litigation.
- Defendants (CUNA, ABA, attorney Robert Stier and law firm Pierce Atwood) made public statements and testimony characterizing ATL as a "patent troll," describing its licensing practices as "extortive" or a "shakedown," and criticizing demand letters and litigation tactics.
- ATL sued for defamation and violations of the New Hampshire Consumer Protection Act (CPA), alleging reputational and economic harm from those statements.
- Defendants moved to dismiss, arguing the statements were nonactionable expressions of opinion, rhetorical hyperbole, or otherwise privileged; the trial court granted dismissal.
- On appeal, the New Hampshire Supreme Court reviewed whether the challenged statements were actionable factual assertions or protected opinion/hyperbole, and whether the CPA claims survived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether calling ATL a "patent troll" is actionable defamation | "Patent troll" statements are false assertions of fact that can be proven false and imply undisclosed defamatory facts | Term is subjective, pejorative opinion not provably true/false; context disclosed factual basis | Not actionable — court held "patent troll" statements were opinion based on disclosed facts |
| Whether statements that ATL's tactics were "extortive" or a "shakedown" are actionable | Such terms assert factual wrongdoing (extortion) and are defamatory | Terms are rhetorical hyperbole; context shows civil, policy criticism not literal criminal accusation | Not actionable — court treated them as rhetorical hyperbole/nonactionable opinion |
| Whether disclosed factual predicates can make an opinion actionable if some predicates are disputed | Plaintiffs alleged facts in complaint contradict defendants’ factual statements; dismissal premature at pleading stage | Whether an opinion implies undisclosed facts is a question of law for the court; disclosed bases negate implication regardless of plaintiff's contrary allegations | Court may decide as a matter of law; dismissal appropriate because defendants disclosed factual bases and opinion remains nonactionable |
| Whether CPA claims survive where underlying statements are nonactionable | CPA claims rest on defendants' false factual assertions and thus should proceed | CPA claims fail if challenged statements are not actionable facts | CPA claims dismissed because challenged statements are not factual, so no reversible error |
Key Cases Cited
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (only statements that imply provable facts are actionable for defamation)
- Piccone v. Bartels, 785 F.3d 766 (1st Cir. 2015) (subjective, pejorative characterizations are protected opinion when based on disclosed facts)
- Riley v. Harr, 292 F.3d 282 (1st Cir. 2002) (opinion is nonactionable when speaker outlines factual basis for conclusion)
- Gray v. St. Martin’s Press, Inc., 221 F.3d 243 (1st Cir. 2000) (First Amendment limits on defamation law; distinguishing opinion and fact)
- Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995) (courts consistently hold opinions based on disclosed facts are nonactionable)
- Pease v. Telegraph Publishing Co., 121 N.H. 62 (N.H. 1981) (rhetorical hyperbole not actionable)
- Thomas v. Telegraph Publishing Co., 155 N.H. 314 (N.H. 2007) (whether an opinion implies actionable facts is a legal question)
- Cluff-Landry v. Roman Catholic Bishop of Manchester, 169 N.H. 670 (N.H. 2016) (defamation plaintiffs must allege publication of a false, defamatory fact with lack of reasonable care)
- Pierson v. Hubbard, 147 N.H. 760 (N.H. 2002) (defamation requires a false statement of fact)