*3 power. WATERMAN, Before PIERCE cor- through the editorial and passed As it WINTER, Judges. Circuit received a hierarchy, proposal porate publicity from P-H’s director notation WINTER, Judge: Circuit and television potential the book’s for radio Prentice-Hall, (“P H”) Inc. from appeals — unless coverage “slight to non-existent trial judgment entered after a bench be- highly book is controversial matter [the] ordering it to dam- pay fore Brieant says so first.” print [media] $24,250 pre-judgment interest ages plus P-H and executed a form contract plaintiff, Colby Zilg, to the Gerard in relevant provided part: Zilg cross-appeals breach of contract. manuscript ... will 3. The be delivered judgment in favor of E.I. DuPont de Nem- the AUTHOR PUBLISH- Co., his ... (“DuPont Company”) ours & Inc. 28, 1974 production March to discuss acceptable form and content met on ER in final The sales estimates of committee plans. the PUBLISHER.... members varied from to 15 thousand has been ac- manuscript 4. When copies year although by May for the first approved cepted predicting only were sales of two members published ... bewill the PUBLISHER Estimates of 15 to 20 10 thousand. from expense.... own at the PUBLISHER’S year period thousand sale's over a five were 12. The PUBLISHER shall Cavin, supporter also made. an ardent the work in such (1) publish right: estimates of 20 to 25 thou made sale of deems best suited to the style year in the first and 25 to 35 thousand sand work; (2) alter the prices to fix or The committee decided on years. over five sold; (3) to de- which the work shall be at a retail copies a first method and means of adver- termine the At a later meet price per copy. work, $12.95 selling tising, publicizing, rough to devote ing, the committee decided cop- destination of free the number and *4 $15,000 advertising. to details, ly in- ies, publishing and all other copies print- the number of to be cluding Although literary scholarly or merits ed, type by if or or other plates from concern, nature, are our of book not form, publishing, style, of process, date various audi- marketability among tone and used, size, to be and like type, paper litigation, ences are facts in this key details. the book’s upon prospects bear half of his com- Zilg submitted the first nega- commercial success and illuminate the November, pleted to Cavin in manuscript reactions later set in at P-H. tive which 1972, and remainder a later. Ca- year The book is a critical of the harshly portrait acceptance vin authorized of the work on family and their role in American P-H, behalf of without the apparently par- social, political history. and economic In- ticipation Grenquist, of Peter who had be- deed, harshly it is a critical of that portrait Divi- president come of P-H’s Trade Book itself. The reactions of history readers sion after execution the con- sometime of reviewers the record indicate tract submission of the manu- but before polarizing, book is the difference view- division scrutinized the script. legal upon in no small measure point depending manuscript for libelous content and con- significant of the beholder. A politics that, brought, cluded if a libel action were a regard number of readers book as ultimately prevail” P-H “would because the caricature, drawing every strident conceiva- subject matter of the work was constitu- against family ble inference the DuPont tionally privileged plaintiffs would firms with which of the fami- members actual malice. The prove to division’s ly judge were or are associated. One at noted, however, opinion litigation BOMC, “300,- for example, described it as against very costly. the DuPonts would be 000 words of the other pure spite.” On hand, the book has a band of admirers. loyal A decision was made to the manu- accept many It received a favorable review in script which was distributed to selected New York Times newspapers, including reviewers, wholesalers, and booksellers. Book Review section. Its comprehensive- Copies sent were also editorial di- ness and the extensive research on which it rector of the Book of the Month Club frequently was based were noted. (“BOMC”). not to Although BOMC decided appeal book also has some to another audi- offer the as a selection of its main ence, club, Club, namely gossip readers with a taste for the Fortune Book subsidiary, powerful, about the rich and particularly appealed readership composed Indeed, executives, readers in it was once largely of business did choose it Delaware.. first in non-fiction sales in that state. as a selection. market, ap- A In the American the book’s committee of various P-H department editor, it representatives, is somewhat limited the fact that including peal the book’s grounds on neys, critical of business and that the book was “scurrilous” is not a work Bergane in and on a ver- capitalism necessary passed “actionable.” reform it, a sion of DuPont-Brown’s to F. Har- viewpoint to save main- remarks order Brown, Rather, ry Editor-in-Chief of BOMC presents Marx- appeal. stream (“BOMC-Brown”). DuPont-Brown then history. weighing against Also ist view family told that DuPont at- (586 were its size BOMC-Brown marketability its overall thick, torneys and that he text, 2 three and found abusive inches pages (almost try 200 was to locate someone at P-H pounds), complexity one-half whom to the book. He also told the surname DuPont discuss members with history) and BOMC-Brown that years and 170 American not throw its dollars). weight did intend to around. price ($12.95 in 1974 BOMC-Brown referred DuPont-Brown June, 1974, Grenquist appears Prior Peter at P-H. Grenquist the nature and to have been aware of later, book, in an effort intensity nega- days apparently Some tone of might quash messages in some rumors or inaccurate feeling tive arouse readers contrary, He DuPont-Brown Gren phoned evidence serious inaccuracies. him that DuPont was not partly by quist been reassured Cavin’s assure may have book, block partly by attempting enthusiasm and the book’s selec- even P-H in litigation, That initiate approach the Fortune Book Club. selec- tion posture. kind such something mystery any itself remains of adversarial One tion rumor, passed allegedly Club’s inside reader concluded it to Cavin since the who does remember the bad crude and editor politically was “a *5 However, conversation, that gone was DuPont had journalistic.” instead of cheaply Magazine pull his that Fortune and threatened to recommendation “be accepting Fortune, advertising. all owned page by page,” back to author fed Time, Inc., the For contracted P-H to have it had no connection with BOMC with tune Book at this time. by the Fortune Book Club. Club adopted June, 1974, Meanwhile, was look In of events set in BOMC-Brown decided to chain July apprised Grenquist personally. into the matter motion which Over weekend, “spent A he two negative aspects Zilg’s work. member 27—28 a horrible the book and it was days reading” of the DuPont an advance decided family obtained the Fortune from a an unsuitable selection for copy manuscript bookseller no and, pres- Book He later stated he felt outraged, turned it over to Club. predictably reaching Affairs Du- from the DuPont in Department Company the Public sure In view of of that this decision. the nature Company. depart- Pont Members and the Club’s audience of business sought ment locate individuals P-H’s book executives, inevitable whom knew his decision seems an management personally im- book, reading result of his book. BOMC speak privately order to about but P-H of not mediately notified its decision They no avail. advised the mem- given book. reason nothing to distribute the pub- ber to do before book was mali- that the was was BOMC’s belief book lished. objectionable cious and had an tone. the DuPont learned July, P-H’s examination of had as a For- own detailed accepted that the book been may also have introduced manuscript tune Book Club selection and decided to act heightened skepticism Grenquist’s part. Harold Brown publication anyway. before toning necessary A was found (“DuPont-Brown”) telephoned down to be page proof. Bergane, manager Yilma of Fortune Book even after fact, such as that Club, the Mistakes of a statement having received her name from (DuPont’s Execu- Irving Shapiro He S. Chief managing Magazine. editor Fortune served Officer) tive had as an Assistant her that had been read told book Queens Attorney County, District New persons, several were attor- some of whom mat- York, More serious go briefly (al- were discovered. out of book stock light. ample just manu- original though copies) ters also came to wholesalers had Judge Harold attacked R. Medina as it sales He script gained expressly momentum. and in the DuPonts found that since did its own printing matters irrelevant selections, district court characteriz- printing which the of club the first cut fashion Zilg admitted at trial that not be ed as libelous. could attributed cancellation foundation for this there was no factual of the BOMC order. He also found that 25,000 may at P-H well would have eyebrows copies attack. book sold P-H Some when this passage have been raised not taken actions. deleted, not only since it was
discovered and Having concluded that P-H had no sound also irrelevant. unfounded but or valid business reason for reducing to correct down printing advertising budget, Judge P-H continued and tone to reverse deci- hoping “privished” Zilg’s BOMC’s held that Brieant it through not the Fortune on the testimony sion to offer basis of the of plain- Book A defensiveness also expert, Club. certain tiff’s William Decker. Decker testi- began toward creep wholly into attitude fied that often mount a August Grenquist the book. On circulat- inadequate merchandising effort after con- ques- ed a which noted that cluding memorandum that a book does meet prior regarding tions had arisen both the tone of expectations quality in either or marketa- recom- Zilg’s approach the book and “privishing” is bility. Such intended to ful- adjective mended “polemical” fill the technical of the con- requirements henceforth be book is used publish tract to but avoid adding “[t]he to one’s polemical argument pretense no by throwing “good money losses after bad.” made that im- anything it is else.” More
portantly, he cut DISCUSSION also the first 15,000 10,000, from stating copies agree We with Brieant that Du- no copies longer were needed Pont interfere tortiously did BOMC. advertising budget The proposed beneficial commercial We relationships. $5,500. $15,000 was also slashed from however, disagree, his conclusion P-H breached its contract with Judge Brieant held that *6 that judgment. reverse Company had a constitutionally protected interest in bringing the nature “scurrilous” by DuPont Tortious Interference of the book a and its For- unsuitability tune Book Judge Club selection to the attention of ap- Brieant that DuPont’s held senior officials P-H. He to proach subsequent at BOMC and BOMC and communi- expressly found the did not Company protected that cations P-H were the by engage in affirm, tactics its First Amendment. coercive but limited We but on the actions to the faith expression good grounds of its narrower that these are activities opinion. not tortious under New York law.
As P-H, to that parties Brieant the Judge agree found that New York law publishing required the and that York applies New courts would to “exercise faith good (Second) its discretion in the follow Restatement of Torts Book, planning promotion of the and in (1977). Corp. Guard-Life Parker S. revising plans.” This re- obligation Manufacturing Corp., Hardware 50 N.Y.2d quired that use best ef- 445, Prentice-Hall “its 406 N.E.2d 428 N.Y.S.2d 628 forts ... the promote fully (1980). Book The Restatement visits tort liability fairly.” He held that P-H this an actor upon “intentionally breached who im- obligation or had no “sound” interferes with properly” contractual rela- “valid” reducing business reason for the others by causing party tions between the printing by perform. ad- those relations not to volumes and Restate- vertising (Second) by $9,500, (1977). allowed ment of Torts We budget § 767(b), DuPont Compa- that DuPont’s actions were As to section the will assume motive, the ny’s amply record demonstrates of BOMC’s decision cause in fact it desired to the attention bring of Fortune as a Book Club offer the book and, P-H, good it in BOMC later what faith of alleged of P-H’s breach selection and aspects were plainly negative believed of of propriety now turn to the contract. We nega- It those expose the book. wanted DuPont’s conduct. aspects causing hope tive the the Restatement cata- 767 of Section plans inducing abandon its and of P-H to evaluating considered in logues factors the publication reconsider without substantial the of interference with contrac- propriety revision. The section reads: tual relations. interest, Zilg just as had an sec- clearly whether an actor’s con- determining Restatement, 767(c) in in avoiding tion the intentionally interfering duct very since consequences contractual rela- prospective contract or under his contract with P-H and selection not, improper tion another is consid- (assuming, the Fortune Book Club with- given following eration is factors: deciding, to be relationship out con- conduct, the actor’s (a) nature of tractual) enhance the would dissemination motive, (b) the actor’s views, him, might of his enrich also (c) of the other with which the interests launch him on a career as a well known interferes, conduct author. actor’s (d) sought to be the interests advanced Conversely, actor, by the interest, 767(d), had a substantial section communicating its views to BOMC (e) protecting interests in the social P-H. While much of the book’s accusatori of the of action actor and freedom family material specific al related to mem- other, interests of the contractual bers, the itself could company reasonably (f) of the proximity remoteness damage suffer to its might believe to the interference and actor’s conduct image will if the book public good parties. (g) the relations between widespread For most given credence. 767(a), the section nature of As to period company covered conduct, Company’s operated was controlled and various Brieant found that it did entail threats subjects who are the members or baseless litigation itself, coercion economic attacks. The title DuPont: Curtain, faith expression but was limited to a seems more a Behind Nylon merits, objectivity about the than to fami company views reference agree. book. We one half accuracy ly. roughly The index contains references length page print and breadth of evidence of eco one small *7 suggests and that company nomic is a conversation coercion between is antitrust vio company guilty ongoing two firsthand parties knowledge, without Moreover, lations. The contains an attack on which one recalls. it in book also only time the Time, Inc., Irving Shapiro, publication at com nothing volved which had to do Board, but not Chairman of the pany’s or distribution the book. member, states, inter family litigation, As to DuPont did con threats alia, witch-hunting he fame that was “of view that the work was vey BOMC its era,” story that “his during McCarthy was is completely BOMC “actionable.” Since and dis P-H, through persecution one of success under its contract with indemnified “never relented remark, grace” that he only is that made unlikely at as arrived BOMC, sorry days,” descriptions any coercive to BOMC. role as an consequence Shapiro’s Assist event, of the representatives DuPont Com in a Attorney Smith Act ant United States pany informed both quickly regard Zilg’s argument only trial. We suing. that it had no intention a cognizable interest in family members ... of power ... told in human ignoring on the book as terms and in the lives of the commenting members of and their Moreover, of the circumstances and charac- actions.” reality Grenquist apprised itself. once prob- ter of the book inaccuracies, lems of tone and factual P—H of this opinion respectfully The author revised the book with permission. disagrees Judges Waterman As Club, to BOMC and Fortune inquiry required Book Pierce that Restate- there can be no doubt of their 767(e), the interests of interest society, ment section receiving communication from the Du- finding is that DuPont act- satisfied Pont since book was an utter- ed in faith and in a non-coercive man- ly inappropriate selection for the Club. its interest in pursuing protecting ner in strong Book clubs have a interest in avoid- case, name. If that were the there would ing the wrath of their members and such (e) no need for subsection since it communications further this interest. adequately would be covered by subsections . believe, (a) (d). therefore, I that a Society benefits from such communica- particularized discussion of the interests of tions because they increase the information society promoting the com- deterring available to publishers and book clubs and of good munication faith views about the thus aid those in meeting firms the desires of a literary merits work to potential purchasers. The reading public is necessary. clubs has an interest both in the accuracy and literary merit of available books and in an communications socially Such seem to me learning efficient means of about works of beneficial they promote the free particular interest to particular readers. flow of ideas. Zilg argues that such com- To the extent targets of “polemical munications should be privileged only when argument” are able to communicate with made to the public large. I see no basis publishers, accuracy and merit may be en- for such a limitation. There is no self-evi- hanced. To the extent are they able to dent harm in book clubs publishing clubs, communicate with book particular learning houses what the targets of a harsh readers are more likely to be exposed to “polemical argument” believe about accurately pre-selected items of interest merits of that argument. surely Such firms them. have, have, or ought to an interest in avoid- ing unjustified attacks as well as factual 767(f) As to section (g), the DuPont error, and such information aids in achiev- Company’s actions surely resulted ing goals. those It amply is clear in the BOMC’s decision not to distribute the book record that book clubs and publishing hous- and, Fortune Book Club selection ei- es are not organizations monolithic which ther because of its direct communications to immediately absorb all relevant information decision, P-H or the BOMC caused the and distribute it evenly throughout the firm change in Grenquist’s attitude toward the Rather, hierarchy. are overworked book. far as the parties So relations of the bureaucracies which channel concerned, information are enough to note selectively prone and can be fully error be- intended his work to be the harsh cause of scant or inaccurate attack it information. was.
This seems to have been the
P-H,
case at
After weighing the factors compris
for both Cavin’s enthusiasm and the wholly
ing section
we hold that
misleading signal from the Fortune Book Company’s conduct
in communicating
*8
Club appear to have misled Grenquist and
Zilg’s
views on
book
not tortious. Au
perhaps others as to the character of the
thors have no exclusive right to the ear of
book and the highly negative response it
works,
those who disseminate their
for in
would meet
in some quarters. Certainly
telligent
by publishers
decisions
and others
the book was something other
than the
are
distributing
books
enhanced
the free
original proposal’s description of a
of information.
“story
long
flow
So
as the expres-
a
in
faith and in
leaves the
of volumes to be
views
done
which
number
sion of
the
printed
advertising budget
This
and
to the
it is not tortious.
way,
non-coercive
discretion. This
is de-
publisher’s
obligation
our
deci-
recent
fully supported
result is
common expectations
both from the
Enterprises,
Inc. v.
rived
sion in Hammerhead
to such
parties
agreements
of
and from
Brezenoff,
(2d Cir.1983), holding
We believe
discussion
such as
one be-
firm. Under contracts
with
under its contract
obligations
P-H’s
us, publishing
print,
firms
advertise
fore
those
finding
his
breach of
Zilg, and
at their
expense.
and distribute
own
books
troubling
his dis-
is more
than
obligations,
performing
return for
these tasks
against
of the case
DuPont Com-
missal
of a
bearing
risk
book’s failure
read
in
Judge Brieant
the contract
pany.
sell,
gives
publisher
the author
exclusive
P—H “to use its best
oblige
question
to the book with certain
rights
reservations
promote
fully....”
...
the Book
efforts
provide
here. Such contracts
important
that the decision to cut the
and found
author,
on
on
royalties
sales
often
re-
budget
printing
original advertising
basis, i.e.,
escalating
higher
at
royalties
an
when
in a
of sales momentum
sulted
loss
levels
sales.
higher
These
briefly
out
stock.
book
held,
H,
agree-
he
breached its
actions
authors
gener-
While
P—
a sound
Zilg
they
lacked
ment
goals,
perspective
similar
differences in
ally
valid business reason.
resulting perceptions
are inevitable.
bigger
has a
stake in the
usually
An author
Putting aside for
moment
a book than a publisher
or failure of
success
in
the first
slashing
printing
motive
regard
among many
it as one
may
who
nei
advertising
we note that
budget,
which
lose mon-
may
some of
publications,
bargained
acquired
explicit
for nor
an
ther
author,
eggs are in one
whose
ey.
fully” promise,
efforts”
“promote
“best
basket,
quite
a calculus
risk
thus has
certain
agreement
less an
make
much
costly
so
as
publisher
from the
far
different
efforts. The contract
promotional
specific
are concerned.
expenditures
promotional
with that
in issue
here thus contrasts
course, views
author’s
publisher, of
Mission, Inc. v.
Mu
Contemporary
Famous
large
to take
risks as a function
willingness
(2d Cir.1977), which
Corp.,
However, up-front money alone cannot negotiated, been and the promise publish to conflicting the fully reconcile interests be meaningless. would We the prom think Uncertainty the surrounds the parties. publish given ise to must be some content of most books publishers and and it implies good faith effort to the size must be cautious about of up-front promote the book including a printing they already increase payments since the advertising budget and to adequate give economic risks take considerable the book a reasonable of achieving chance promoting books at their own light subject market success in mat as expense. Negotiating such matters likely ter and audience. Contemporary See printed volumes number of to be and the Mission, Corp.; Inc. v. Famous Music cf. level advertising might possi- efforts be Neville, Valkenburgh Nooger Van & Inc. v. ble in the bargaining but such case of each Co., Publishing 34, Hayden 30 N.Y.2d 281 author each book would be enormously (1972) N.E.2d (publi N.Y.S.2d 329 guarantee is never a costly. There of ulti- of competing may cation works be so fore agreement, negotia- mate and if set of seeably to royalties harmful author’s as to issues, bargaining tions fails over these promote book). breach covenant to again must begin publisher. with another However, the clause empowering the Moreover, publishers wary must also be publisher to decide its discretion upon the to undertaking obligations print a certain printed number volumes level of number spend of volumes or to fixed sums promotional expenditures also be giv- must on promotion. They will strongly prefer to If en some content. a trier fact is free flexibility reacting to mar- actual to whether determine such decisions are according keting conditions to own their valid, publisher’s ability sound rely to experience. upon experience judgment own The contract between marketing books will seriously ham- printed negotiated form formal and We pered. obligation believe once the e.g., parties’ names matters — promotional to undertake reasonable initial amount of the advance to the author— fulfilled, activities has been the contractual typed in. Under the terms of the printed language dictates a business decision form, accepted manuscript once P-H it publisher to limit print- the size of a publish to obliged book but had ing advertising budget subject is not discretion to determine the number of vol- by a guessing second trier fact as printed umes to be and the level of adver- whether is sound or valid. are, tising expenditures. These clauses course, interrelated and the extent to line we draw reconciles the legiti- the language regarding promotional efforts conflicting mate interests publisher promise publish each modify author reflected the contractual lan- other central is the issue before In us. for it guage, compels publisher to make it, we resolving attempt must preserve good faith effort to promote the book major parties. interests of both Sharon initially whether or not it has had second Bank, Steel Corp. Chase Manhattan while thoughts relying upon profit mo- Cir.1982). (2d F.2d 1039 tive thereafter to create the incentive for elaborate promotional more efforts. Once accepted P-H had Once fulfilled, obligation the initial is all that right publish obtained the exclusive it. is a faith required judgment. business empowering Were the clause the publisher is not interpretation This harmful promotional expenses determine lit read rigorous authors. Were courts to impose the contract would allow a erally, as to requirements promotional efforts, print refuse to or distribute any copies a book would of having necessity while exclusive undertake to rights it. effect, fewer guaranteed publish authors would be books with fu- unpredictable nothing but up-front whatever tures. *10 draw, only we a of con- Brieant found that an “unex- Judge line breach
Given the the printing reduction in first Zilg ways. plained” in two might proven by tract budget advertising go caused the book to the initial First, he demonstrate that might period brief of time and out stock a efforts were so promotional printing prevented exploitation growing the sales the book a reason- inadequate give as not momentum. He thus did not find that P- reading with the to catch on able chance gave the promotional H’s efforts book no Second, might he show that even public. Rather, he reasonable chance to sell. found promotional efforts greater printing generated that momentum was but sales not for reasons other than were undertaken the adequately exploited not book judgment. Because good a faith business situation, out stock. That briefly was neither, the judg- has shown we reverse he however, was not an outcome of inevitable favor. ment his the a printing timely the size of since prevented it. In- reprinting would obligation, As to initial deed, a Grenquist reprinting ordered when on behalf not that P-H’s efforts has shown original volumes still over 10% were it a reasonable give of his book did not a delivery in that re- delay stock reading public. the on with chance to catch led to the three out of printing week stock 13,000 volumes reprinted printed It Moreover, the always situation. book was sales at which the (3,000 over the volume of although, from available wholesalers as triggered), authorized highest royalty was found, prefer Judge Brieant sellers $5,500 (1974 pur advertising budget provide who a discount. buy from copies distributed over 600 chasing power), reviewers, ads in such purchased papers The court read the con district York Times and Wall Street as the New continuing a tract as on P-H obli imposing Journal, made reasonable efforts sell to pro to use “its best efforts ... gation rights. documentary paperback fully fairly” mote Book and as a contin Grenquist that took record shows fact empowering guess a trier of to second marketing made ued interest as publisher’s judgments soundness effectively as to suggestions promoting disagree. of the decisions made. We So sent to and ordered that “rave reviews” be efforts are long promotional as the initial as 1975. January, BOMC as late above, under the test we outline adequate advertising deci printing publisher’s pro- that initial decisions as fact such that sions not breach as do no were trimmed is of rele- motional efforts that plaintiff proves us unless the before absent evidence that the actual ef- vance underlying those decisions the motivation inadequate were that forts made so judgment. was faith business not have a chance to book did not reasonable produce such evidence. His Zilg failed The rec- reading public. catch on with based that economic theory case was on P-H’s esti- ord is barren such evidence. caused coercion peak year of first sales made at mates promotional P-H to reduce its efforts. within the firm were standing of the book’s against him on this Judge Brieant found 12,000-15,000. By May, before only above, and, af issue for reasons stated we reversal, 10,- the low estimate firm this determination. It that an can be contended hardly the re- finding district court’s 10,000 reprinting This initial was not promotional duction of efforts obliga- low it breaches the so reason a sound or valid business chance to based on the book a reasonable give tion conclusion Decker, support thus does himself tes- expert, sell. Plaintiff’s The district the contract was breached. “perfectly tified that these efforts were legal a different view of court took adequate,” they were “routine” although imposed by the contract and obligations through and P-H “did follow optimis- highly based conclusion might have.” PIERCE, marketability opinion Judge tic Circuit (concurring): peak of book’s book. Even agreement I am in with the result P-H, at a when standing time within reached in opinion. Winter's able *11 offer going Club was it as Fortune Book Thus, concur, respectfully I but I reach problems before the of tone a selection and on same conclusions grounds. narrower focus, into no come one at accuracy My concurrence is directed to that P-H the book would thought save Cavin be portion opinion addressing Zilg’s as the as successful district court later claim by of tortious interference DuPont. March, 1974, found. P-H’s estimate for Recognizing applicable law requires a sales, year example, five showing of “intentional improper” in 20,000, being the low estimate closer to terference with a contract liabil before tort high than actual sales estimate is to defendant, ity may upon be visited Re Indeed, Judge finding. Brieant’s Judge (Second) (1977), statement of Torts 766 I § of the book’s potential Brieant’s view pivotal consider the this facts in case be entirely inconsistent with Decker’s defini- sup district court’s findings fully— throwing “good tion of privishing —not by ported that, the record in ef evidence — bad” —for he in after essence found fect, DuPont’s communications managed that P-H had to avoid a small concerning alleged in inaccuracies by breaching bonanza its contract. good were made in faith were non-coer cive. Opinion Brieant 48- above, Judge we See explained As think the con- 49, view, In my findings are a tract between left the deci- factor” determining “chief Du whether question judgment sions in to the business Pont’s actions were improper. See Guard- of the publisher, protection the author’s be- Corp. Mfg., Life v. Parker S. Hardware 50 experience, ing publisher’s judgment 183, 190, 445, 448, N.Y.2d 406 N.E.2d 428 quest profits. promotional 632; 628, N.Y.S.2d see also Restatement were, words, efforts Decker’s “ade- (Second) of 767(a). Torts § notwithstanding quate,” the reduction of the first and the initial As advertising analysis of Restatement Indeed, budget. reductions, (Second) 767(e) (interests those Torts of soci- coming § ety), say I believe it suffices on the heels BOMC’s decision not DuPont’s communications to BOMC consti- distribute the to be a appear rational faith, good tuted a pursuit non-coercive reaction to that news. Decker himself tes- name, in protecting interest DuPont’s tified that the Fortune Book Club selection socially conduct was not undesirable. Since was an important barometer of marketabili- pivotal we find no error as to the factual ty since it was an independent judgment point, findings by this measured that the had an audience. con- 767(e), factor enunciated in Restatement § tract with P-H did compel findings clearly those weigh DuPont’s ignore implications of BOMC’s question favor on the liability tort here- change of heart. in. part, Affirmed in reversed in part.
Because conduct in this DuPont’s case was found to undertaken in WATERMAN, (concur- Circuit Judge non-coercive, I faith and was conclude ring): by committed no tort communicat I concur in result Judge reached ing to BOMC its concerns about the accura most Winter and in of that opinion. How- Moreover, the cy of the book. determina ever, portion as to that opinion writ- no contractual tion of breach alone would ten Judge Judge Winter to which Pierce tort, DuPont’s suggest non-liability for has written law, a concurring opinion I concur in New York since under breach of the concurring opinion allegedly interfered with Pierce. is an es- Judge herein. of the tort claimed element sential Finan Co. FNB Inselman & Jack L.
See 1080, 1078, 364 N.E.2d Co., 41 N.Y.2d
cial 347, (1977). 1120, 396 N.Y.S.2d result reached in the
I concur
Winter. *12 Franklyn B. MALLIS and
Samuel Plaintiff-Appellees,
Kupferman,
Cross-Appellants, COMPANY, TRUST Defend-
BANKERS Cross-Appellee.
ant-Appellant, 82-7734, 783, 987, 79-7780.
Nos. Dockets Appeals, Court of
United States
Second Circuit. 14, 1983.
Argued Feb. 1, 1983. Sept.
Decided