Gilman v. Spitzer
538 F. App'x 45
2d Cir.2013Background
- William Gilman sued Eliot Spitzer and Slate Group for defamation over a Slate column by Spitzer on Aug. 22, 2010 that discussed prosecutions of Marsh & McLennan employees.
- The column did not name Gilman but referenced vacated convictions and said “many employees of Marsh who have been convicted and sentenced to jail terms.”
- Gilman alleged those statements referred to him and defamed him despite his conviction having been vacated.
- District court entered judgment on the pleadings for defendants, holding the statements were not "of and concerning" Gilman; this appeal followed.
- Second Circuit reviewed the judgment on the pleadings de novo, accepting complaint allegations as true and drawing inferences for the non-movant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the column’s statements were "of and concerning" Gilman (defamation requirement) | Gilman: reasonable readers would tie the references to Marsh convictions to him given Spitzer’s investigation and his vacated conviction’s prominence | Spitzer/Slate: statements were general references to Marsh and its employees; column expressly acknowledged Gilman’s conviction was vacated, so not referring to him | Held: Not of and concerning Gilman; no reasonable reader would understand the statements to refer to him |
| Whether a generalized corporate reference can support individual defamation | Gilman: context and prior public allegations made the link to him | Defendants: broad references to a corporation and its employees cannot single out one member | Held: General references to Marsh and its employees cannot give rise to a claim by an individual employee |
Key Cases Cited
- Sheppard v. Beerman, 18 F.3d 147 (2d Cir. 1994) (standard for judgment on the pleadings)
- Kirch v. Liberty Media Corp., 449 F.3d 388 (2d Cir. 2006) (defamation requires publication "of and concerning" the plaintiff)
- Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980) (plaintiff must show readers understand statement refers to him)
- Algarin v. Town of Wallkill, 421 F.3d 137 (2d Cir. 2005) (unnamed plaintiff actionable only if surrounding circumstances point to him)
- Abramson v. Pataki, 278 F.3d 93 (2d Cir. 2002) (broad organizational references do not necessarily refer to individual members)
- Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226 (N.Y. App. Div. 1981) (defamatory comment must refer to plaintiff)
- DeBlasio v. N. Shore Univ. Hosp., 213 A.D.2d 584 (N.Y. App. Div. 1995) (context must indicate the plaintiff is the person meant)