159 F. Supp. 3d 341
E.D.N.Y2016Background
- McCusker worked at hibu Inc. from 1989 and rose to President and CEO; he was terminated for cause on March 6, 2013.
- CEO Michael Pocock sent an email to ~5,000 hibu U.S. employees stating McCusker was dismissed after a "thorough investigation" for conduct the company "considered to be disloyal" and that hibu was "considering what further action to take, including legal proceedings."
- The email was widely republished internally and on the internet.
- McCusker sued in Pennsylvania court alleging defamation (and WPCL), defendants removed and the case was transferred to this Court; defendants moved to dismiss the defamation claim under Rule 12(b)(6).
- Defendants argued the email was conditionally privileged, true (truth defense), and non-actionable opinion; McCusker argued the email could be defamatory and privilege was abused.
- The Court denied the motion to dismiss, finding the email was capable of defamatory meaning and that privilege, truth, and opinion defenses could not be resolved at the pleading stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Email is capable of defamatory meaning | Email implies McCusker engaged in unethical/possibly illegal conduct, so it is defamatory | Email merely described termination and used non-actionable terms like "disloyal" and "thorough" | Court: Email is capable of defamatory meaning; survives 12(b)(6) |
| Whether the Email is conditionally privileged | Privilege abused because email was sent to all employees and republished online, suggesting improper dissemination/malice | Email was a communication to employees with a common interest about termination, thus conditionally privileged | Court: Privilege may apply but abuse is a factual question; cannot dismiss now |
| Whether truth defeats the claim at pleading stage | Plaintiff pleads falsity sufficiently; truth is a defense but not apparent on face of complaint | Defendants say statements are true, so no defamation | Court: Truth is an affirmative defense that cannot be resolved on a Rule 12(b)(6) motion |
| Whether statements are non-actionable opinion | Plaintiff: wording implies undisclosed defamatory facts, not mere opinion | Defendants: terms like "disloyal" and "thorough investigation" are opinions | Court: Reasonable reader could infer undisclosed defamatory facts; statements not pure opinion |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for plausibility)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading standard requiring factual plausibility)
- Moore v. Cobb-Nettleton, 889 A.2d 1262 (Pa. Super. 2005) (definition of defamatory communication)
- Tucker v. Philadelphia Daily News, 848 A.2d 113 (Pa. 2004) (court determines if communication is capable of defamatory meaning)
- Veno v. Meredith, 515 A.2d 571 (Pa. Super. 1986) (opinion vs. implication of undisclosed facts)
- Agriss v. Roadway Express, Inc., 483 A.2d 456 (Pa. Super. 1984) (privilege and jury role in abuse of privilege)
- Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072 (3d Cir. 1985) (no actual harm required for defamation claim)