334 Conn. 396
Conn.2020Background:
- Plaintiff NetScout (network performance monitoring vendor) was placed in Gartner’s 2014 "Magic Quadrant" as a "Challenger" and was criticized in three specific "cautions." NetScout alleged those statements were false and defamatory and that Gartner ran a "pay-to-play" scheme (CUTPA claim) rewarding vendors who purchased consulting services.
- Gartner publishes Magic Quadrant rankings (quadrant based on "Completeness of Vision" and "Ability to Execute") and also sells consulting (Strategic Advisory) services; some internal emails showed debate and weighting changes among analysts.
- NetScout participated in the evaluation process but declined to buy consulting services; Gartner published the report to thousands of subscribers and made marketing claims that its research was "impartial," "independent," and "objective."
- NetScout sued for defamation and CUTPA violations; Gartner moved for summary judgment asserting First Amendment protections and that the statements were nonactionable opinion; the trial court granted summary judgment for Gartner (finding opinion and, as to some statements, that NetScout was a limited-purpose public figure that failed to prove actual malice).
- The Connecticut Supreme Court affirmed on the alternative ground that all challenged statements were nonactionable expressions of opinion and that NetScout failed to produce credible evidence of a pay-to-play correlation or of falsity of Gartner’s objectivity claims.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gartner's placement of NetScout in the Magic Quadrant and related descriptions are actionable statements of fact or protected opinion | Placement and descriptive cautions conveyed factual, defamatory implications about NetScout's capabilities | Rankings and descriptive language are subjective, comparative evaluations and thus nonactionable opinion | Statements (placement + cautions) are nonactionable opinion as a matter of law |
| Whether Gartner's marketing claims of "objectivity" converted its opinions into actionable false factual assertions | Gartner falsely advertised impartiality; that falsity makes its critical opinions actionable | Claims of objectivity are puffery/insusceptible of proof and do not convert opinion into fact | Marketing claims of objectivity did not make the challenged statements actionable; plaintiff offered no credible evidence that objectivity claims were false |
| Whether NetScout is a limited-purpose public figure and thus required to prove actual malice (First Amendment) | NetScout argued it was not; trial court treated it as such | Gartner argued public-figure/ public-concern standards applied | Court did not need to resolve this; ruled statements nonactionable opinion (alternative ground). Trial court had required actual malice and NetScout failed to prove it |
| Whether evidence supported CUTPA "pay-to-play" claim (causation/damages) | Internal emails and ranking changes show bias and correlation between consulting payments and ranking | No credible evidence of correlation; plaintiff's expert conceded key contradictory data; no ascertainable loss shown | Plaintiff failed to prove a pay-to-play correlation or damages; CUTPA claim fails as derivative of nonactionable speech |
Key Cases Cited
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (opinion/fact distinction; opinions without provably false factual connotations are protected)
- Gleason v. Smolinski, 319 Conn. 394 (2015) (First Amendment actual malice standard for limited-purpose public figures)
- Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107 (1982) (definition and distinction between opinion and fact; context inquiry)
- ZL Technologies, Inc. v. Gartner, Inc., 709 F. Supp. 2d 789 (N.D. Cal. 2010) (ratings based on subjective weighting and customer opinions are nonactionable opinion)
- Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995) (three-part test: tenor, figurative language, verifiability in opinion/fact analysis)
- Compuware Corp. v. Moody's Investors Servs., 499 F.3d 520 (6th Cir. 2007) (subjective weighting of factors in ratings constitutes opinion)
- Seaton v. TripAdvisor, LLC, 728 F.3d 592 (6th Cir. 2013) (ratings based on customers' opinions are nonactionable)