The “Of and Concerning” Element of Defamatory Meaning

Last year I commented on Gilman v. Spitzer, a defamation case out of the Southern District of New York, in which the court dismissed the plaintiff’s defamation claim on the ground that the statements at issue could not be reasonably interpreted as being “of and concerning” the plaintiff. On September 18, 2013, the Second Circuit affirmed that decision, holding that the statement at issue did not pass the “of and concerning” test.

Defamatory words are not actionable unless they refer to someone, and do so clearly enough that those who hear or read the statement will understand the reference. This has come to be known as the “of and concerning” test. If the words are not “of and concerning” the plaintiff, then the plaintiff has no cause of action. Courts have the authority to decide as a threshold matter whether an alleged statement can be reasonably understood as referring to the plaintiff, and to dismiss the case at the outset if the statement cannot be so interpreted.

To recap, William Gilman, an employee of Marsh & McLennan Companies, Inc. sued Eliot Spitzer, former New York State Attorney General, for defamation stemming from an article that Spitzer wrote in response to a Wall Street Journal editorial questioning his prosecution of the insurance industry. Spitzer’s article criticized the editorial for noting that two cases against Marsh employees had been dismissed after the defendants were convicted, yet who_me.jpgfailing to acknowledge “the many employees of Marsh who have been convicted and sentenced to jail terms.” Gilman’s case was one of the two that had been dismissed. The article also accused “Marsh and its employees” of pocketing increased fees and kickbacks. Gilman was not mentioned by name in the article. The district court found that no reasonable reader of the entire passage would come away thinking that the article referred to Gilman, so it dismissed the claim.

The Second Circuit affirmed the decision in all respects, noting that to state a claim for defamation, a plaintiff must establish that the challenged comments refer to him. Where a person is not mentioned by name, the language must be such that persons reading it and who know the plaintiff would, in light of all the surrounding circumstances, be able to understand that the statement is referring to the plaintiff.

In this case, Spitzer’s article acknowledged that Gilman’s conviction had been dismissed. Therefore, Gilman clearly was not included in the group of Marsh employees “who have been convicted and sentenced to jail terms.” Additionally, no reasonable reader would understand Spitzer to, in one instance, state that the Journal “noted” the dismissal of Gilman’s case and, in the next breath, accuse the Journal of “failing to note” Gilman’s case. Furthermore, the article refers to Marsh as a company, and such a broad reference to an organization cannot give rise to a defamation claim by one of its members. In other words, Spitzer’s generalized reference to “Marsh and its employees” cannot reasonably be read to refer to Gilman either directly or indirectly.

Gilman argued that given the allegations leveled against him during Spitzer’s investigation, knowledgeable readers would tie these statements to him, but the court found the opposite to be true: readers aware that Gilman’s conviction had been dismissed would be less likely to believe that he was one of the employees who had been convicted and sentenced to a jail term. The Second Circuit affirmed the district court’s decision, holding that the challenged statements could not reasonably be understood to be “of and concerning” Gilman.

A defamatory statement about a corporation is not necessarily “of and concerning” its employees, and a defamatory statement about a particular employee is not necessarily “of and concerning” the employer. As with most things in the law, it all depends on the circumstances. A defamatory statement about a company’s President or CEO, for example, could very well be deemed of and concerning the company itself if the statement is such that it could affect the company’s reputation and business.

On March 26, 2021, the Circuit Court of Fairfax County, Virginia, issued an opinion in Vivera Pharmaceuticals, Inc. v. Gannett Co., Inc., illustrating this principle. The case was brought by Vivera Pharmaceuticals, a manufacturer of COVID-19 home test kits, against USA Today and others over an article containing numerous disparaging statements about Vivera’s CEO, Paul Edalat. Among other things, the article highlighted Edalat’s troubled history with regulators, his various legal entanglements, and suggested that he was unscrupulous and unethical. A defamation suit followed, but it wasn’t Mr. Edalat who sued; it was Vivera Pharmaceuticals, his employer. The defendants argued that the claim had to be dismissed because the statements about Edalat were not “of and concerning” Vivera, but the court disagreed. It held that the statements “concern Vivera’s reputation and perhaps could be construed as to Vivera.” It was persuaded by an allegation in the complaint that alleged false statements accusing Edalat of fraud could be read to imply that “there must be something wrong with Vivera’s antibody tests.” As the “face of the company,” the court wrote, “any misgivings about his honesty or transparency place Vivera’s credibility into question.” The court therefore overruled the demurrer and allowed the claim to proceed.


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