Gilman v. Spitzer
902 F. Supp. 2d 389
S.D.N.Y.2012Background
- Gilman, a Marsh & McLennan employee from 1976–2004, was involved in contingent commissions investigations led by then-NY Attorney General Spitzer.
- Spitzer announced Marsh investigations in 2004; Marsh settled in 2005, paying $850 million and agreeing to reforms including ending contingent commissions.
- Gilman was indicted in 2005 on multiple counts; he was convicted on one count of restraint of trade, later vacated due to undisclosed exculpatory evidence; other charges against Marsh executives were dismissed or resolved.
- In 2010, editorial in The Wall Street Journal criticized Spitzer’s Marsh prosecutions; Spitzer responded with a Slate article in 2010 addressing Marsh misconduct and noting convictions of Marsh employees.
- Gilman sued for defamation in federal court; Spitzer and Slate moved for judgment on the pleadings on the grounds statements were not of and concerning Gilman and were privileged as a fair report of a judicial proceeding.
- Spitzer and Slate also asserted an anti-SLAPP counterclaim under New York law; the court held the anti-SLAPP statute inapplicable because the publication was not related to Gilman’s insurance licensure or permit approval.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statements are 'of and concerning' Gilman. | Gilman argues the statements refer to him in context. | Spitzer/Slate contend the statements refer to Marsh and its employees, not Gilman specifically. | No reasonable reading ties to Gilman; dismissal granted. |
| Whether the statements are privileged as a fair and true report of a judicial proceeding. | Gilman asserts potential defamations are within fair report privilege. | Spitzer/Slate rely on privilege for reporting judicial actions. | Court did not reach alternative privilege; no defamation claim survives. |
| Whether Gilman’s defamation claim survives under 'of and concerning' analysis when the publication mentions a group (Marsh and its employees). | Gilman contends the preceding context ties him to the statements. | Publication targets Marsh as a company and its broad employee base; not Gilman specifically. | Group reference insufficient to make it 'of and concerning' Gilman. |
| Whether the NY anti-SLAPP counterclaim is applicable to the defamation suit. | Gilman opposes dismissal of the anti-SLAPP counterclaim. | Anti-SLAPP applies to public petition/participation related to license applications. | Anti-SLAPP does not apply; counterclaim dismissed. |
Key Cases Cited
- Kirch v. Liberty Media Corp., 449 F.3d 388 (2d Cir.2006) (defamation 'of and concerning' standard)
- Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226 (2d Dep't 1981) (group defamation standards; reference to group)
- Weiner v. Doubleday & Co., 74 N.Y.2d 586 (N.Y.2000) (read words in context; avoid strained readings)
- Algarin v. Town of Wallkill, 421 F.3d 137 (2d Cir.2005) (group defamation; 'of and concerning' analysis)
- DeBlasio v. North Shore Univ. Hosp., 213 A.D.2d 584 (2d Dep't 1995) (implications of unnamed individuals in publications)
- New York Times v. Sullivan, 376 U.S. 254 (U.S.1964) (constitutional standard for defamation)
- Abramson v. Pataki, 278 F.3d 93 (2d Cir.2002) (public officials and defamation)
- Fulani v. New York Times Co., 260 A.D.2d 215 (1st Dep't 1999) (limits on claims against publishers)
- Diaz v. NBC Universal, Inc., 337 F. App’x 94 (2d Cir.2009) (appellate treatment of defamation in media context)