Opinion
CV146022988S
09-11-2017
Netscout Systems, Inc. v. Gartner, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY NO. 305)
Hon. Charles T. Lee, J.
INTRODUCTION
On or about August 5, 2014, the plaintiff, NetScout Systems, Inc. (NetScout), commenced this action against the defendant, Gartner, Inc. (Gartner), for violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § § 42-110b et seq., defamation, and defamation per se. On February 17, 2015, NetScout filed the operative revised complaint (Docket No. 131), the first count of which alleges that Gartner's purportedly unbiased ratings of NetScout and other vendors in actuality were corrupted by favoritism towards the vendors that were Gartner's highest paying customers. The second count alleges that the rating and comments assigned by Gartner to NetScout, although couched as opinion, were defamatory and untrue and that NetScout should have been ranked as a Leader in its field rather than a Challenger.
On December 9, 2016, Gartner filed the present motion for summary judgment. (Docket No. 305.) The court grants Gartner's motion for summary judgment as to the defamation count because there is no genuine issue of material fact that, for the purposes of the First Amendment, Gartner is a limited purpose public figure, the speech at issue relates to matters of public concern, and NetScout has failed to present clear and convincing evidence that such statements were made with actual malice. The court also grants Gartner's motion for summary judgment as to the CUTPA count because it is based on harm allegedly caused by the same speech protected by First Amendment principles, and because NetScout has presented insufficient evidence of causation to prove that Gartner's review of NetScout was influenced by a pay-to-play scheme.
The Allegations of the Complaint
In its Revised Complaint, NetScout alleges the following: NetScout is a major provider of analytical hardware and software products to facilitate the management of internet network performance. Gartner is a leading information technology research and advisory company. Gartner's research reports influence companies seeking to purchase technology equipment. As a result, being ranked positively by Gartner increases a company's sales and revenue. Gartner also sells its consulting services to many of the same vendors it ranks.
Gartner represents that its research product is unbiased. NetScout alleges, however, that the ranking system is not based on objective facts but rather, on Gartner's " pay-to-play" business model, whereby a vendor's ranking is influenced by the amount of fees it pays to Gartner. In its Magic Quadrant research report dedicated to NetScout's industry, Gartner assigned NetScout an unfair ranking with respect to some of its competitors, along with negative comments relating to its products. NetScout alleges that these statements were based not on merit, but on a lack of fees paid by NetScout to Gartner, i.e., Gartner issued false statements about NetScout in furtherance of a " pay-to-play" scheme, thereby violating CUTPA (count one) and defaming NetScout (count two).
The Previous Ruling on Gartner's Motion to Strike
On December 15, 2015, this court denied Gartner's motion to strike both counts of the complaint [61 Conn. L. Rptr. 477, ]. Gartner's position in support of its motion to strike was that NetScout failed to sufficiently allege actual malice, which Gartner argued was required to support NetScout's defamation claim under the First Amendment because NetScout was a public figure and the statements at issue related to a matter of public concern. Gartner further argued that NetScout's CUTPA claim should also fail because it relied wholly on the defamation claim.
In its memorandum of decision (Docket No. 140.03), the court determined, among other things, that there were insufficient facts alleged to support Gartner's argument that NetScout was a public figure, and that the court could not conclude at the motion to strike stage that the statements alleged were of public concern because there was insufficient information provided as to the circulation of the Magic Quadrant report at issue. The court also determined that there were sufficient allegations to support the CUTPA claim based on the alleged " pay-to-play" scheme.
The Present Motion for Summary Judgment
The operative revised memorandum in support of Gartner's motion for summary judgment was filed on March 20, 2017. (Docket No. 418.) On February 17, 2017, NetScout filed its memorandum in opposition to Gartner's motion (Docket No. 384), to which Gartner filed a reply on March 9, 2017. (Docket No. 402). The court heard oral argument on April 10, 2017. On April 11, 2017, Gartner filed a motion to supplement its argument in response to a question directed to Gartner by the court at oral argument. (Docket No. 433.) On April 26, 2017, NetScout filed a motion for leave to correct and supplement the record (Docket No. 434), to which Gartner filed a response on May 1, 2017 (Docket No. 451), and NetScout filed a reply on May 12, 2017 (Docket No. 455).
CONTENTIONS OF THE PARTIES
Gartner's grounds for summary judgment are (i) that NetScout's claims for defamation, defamation per se, and violation of CUTPA are all barred by the First Amendment; and (ii) that the CUTPA claim is not supported by evidence, is nonactionable, and the plaintiff has failed to demonstrate an " ascertainable loss." Gartner argues that the alleged defamatory statements are matters of public concern and that NetScout is a limited public figure for the purposes of the controversy addressed by the alleged defamatory statements, findings which would require a genuine issue of material fact as to whether the statements were false and were made with actual malice, i.e., conscious or reckless disregard for such falsity. Gartner claims that NetScout has failed to submit counter-evidence supporting such a genuine issue of material fact, and that, because the CUTPA claim is based on, and causation is solely attributable to, the same speech, the CUTPA claim must fail for the same reason. Gartner's arguments specific to the CUTPA claim are that (i) Gartner's business model is not prohibited by CUTPA; (ii) there is no evidence that vendor payments influenced NetScout's rankings; and (iii) NetScout has failed to demonstrate an " ascertainable loss" as required to support a CUTPA claim.
NetScout counters that Gartner's speech is " commercial speech" for the purposes of the First Amendment, which receives diminished constitutional protection. Even if Gartner's speech is not commercial, NetScout contends that the speech is not of public concern and NetScout is not a public figure and, therefore, that NetScout need only demonstrate negligence with respect to the falsity of Gartner's statements. In the alternative, even if there is no genuine issue of material fact that NetScout is a public figure and the speech is of public concern, it argues that it has submitted sufficient proof to create a question for the jury as to the falsity of the statements and as to Gartner's malice in publishing them. NetScout contends that the First Amendment does not bar its CUTPA claim, and that Gartner's " pay-to-play" model, as well as Gartner's allegedly false statements that its research is " unbiased" and " objective, " are in violation of CUTPA. NetScout argues that Gartner's " pay-to-play" model caused NetScout an " ascertainable loss" because Gartner's lackluster review of NetScout steered away potential clients.
THE EVIDENCE SUBMITTED
The scope of submissions on this motion is voluminous. Attached to the supporting and opposing memoranda, the parties submitted over 400 exhibits, numerous affidavits and excerpts from deposition transcripts. The court has carefully reviewed the evidence submitted by the parties and finds little disagreement as to the relevant underlying facts.
The Parties
NetScout is an established provider in the network performance monitoring and diagnostics (NPMD) market, meaning it provides technology products that allow a company to monitor and diagnose the performance of its computer network. NetScout serves approximately 2000 clients, including Fortune 100 corporations, all five branches of the United States military, banks, and financial service providers, generating hundreds of millions of dollars of revenue in 2013 and 2014 in more than thirty countries.
Gartner is a leading information technology (IT) research and advisory company, and works with its clients to research, analyze, and interpret their IT-related needs. One service that Gartner provides is its Magic Quadrant research reports (MQ), which are designed to aid clients and consumers in making IT purchases or investment decisions. As an influential IT consulting company, Gartner's research reports, including the MQ, influence companies seeking to purchase IT equipment. As a result, being ranked highly is credibly beneficial to a company's sales and revenue. At the same time, Gartner offers consulting and other services to the same vendors it ranks in its research reports.
The MQ Process
The MQ at issue provides a matrix of four boxes in which are placed the vendors being evaluated. Two broad criteria, the " Ability to Execute" and " Completeness of Vision, " provide the axes of the quadrant (see below). The four quadrants are labeled: (i) " Leaders" (top right)--the most desirable; (ii) " Challengers" (top left)--intermediate; (iii) " Visionaries" (bottom right)--intermediate; and (iv) " Niche Players" (bottom left)--the least desirable. NetScout was placed in the Challenger category. In text, Gartner provides general descriptions for each of its four quadrants, as well as vendor specific descriptive comments about each ranked company, including three " strengths" and three " cautions."
The graph below indicates in alphabetical order only which section of the quadrant each of the vendors was placed in the MQ at issue. (See Defendant's Exhibit 202, p. 2, Docket Entry No. 366.) On the actual graph in the MQ, each of the vendors is represented by a dot, the placement of which varies based on how that vendor fared in terms of " ability to execute" and " completeness of vision, " i.e., a vendor in the " Challengers" category may fare better in terms of " ability to execute" than a vendor in the " Leaders" category, and a vendor in the " Visionaries" category may fare better than a " Leader" in terms of " completeness of vision."
CHALLENGERS
LEADERS
CA Technologies
Fluke Networks
NetScout System
JDSU-Network Instruments
Riverbed
NICHE PLAYERS
VISIONARIES
Corvil
AppNeta
Genie Networks
HP
InfoVista
Lancope
Niksun
Orsyp
Paessler
SevOne
Ability to Execute
Completeness of Vision
NetScout in the MQ Process
On July 29, 2013, Gartner announced that it would prepare a new MQ focused on the network performance monitoring and diagnostic market (the NPMD MQ), and provided its criteria for inclusion and evaluation in the new MQ. On September 2, 2013, Gartner invited vendors that it felt would likely meet the criteria for inclusion, including NetScout, to participate in the inclusion and evaluation process, and sent out detailed questionnaires to many potential participants. NetScout responded with its submission for the NPMD MQ on October 1, 2013. NetScout participated in the inclusion and evaluation process for the NPMD MQ in the ensuing months, which included interviews with Gartner analysts. The MQ report went through numerous drafts with much internal debate. While NetScout was initially placed in the Leader category with eight other vendors out of fifteen participating, eventually only three vendors were included in that category.
The Rating
A draft of the NPMD MQ was released to NetScout on January 9, 2014, in which NetScout received a secondary ranking of " Challenger." The description for the " Challengers" quadrant was the following: " Challengers consist of those with high market reach and large deployments. Once leaders in the network performance monitoring market, they are currently struggling to deal with new technical demands and rising expectations. These established NPMD vendors bring a substantial installed base, but also architectures, feature sets and pricing structures that require modernization (often in progress) to better compete with those in the Leaders quadrant."
In addition to a general description of NetScout's standing in the sector, Gartner listed three " strengths" of NetScout and three " cautions." The " cautions" stated:
i. " NetScout has a limited ability to expand beyond its network management heritage, which would be the next logical step (for example, into APM [Application Performance Monitoring] or IT operations analytics)";
ii. " Offering only a hardware-based deployment model limits NetScout's ability to address growing software and SaaS [Software as a Service] solution demand"; and
iii. " NetScout is perceived as a conservative stalwart in the NPMD space, and lacks the reach and mind share that many smaller competitors have."
Discussions about the MQ Draft
NetScout protested its ranking and the cautions assigned by Gartner. On January 14, 2014, NetScout personnel participated in a conference call with two of the authors of the MQ. (Plaintiff's Exhibit No. 153.) The authors explained that certain specific comments were based on responses they received from NetScout's customers about its services. They further explained why they thought the vendors in the Leaders category were superior to NetScout in the breadth of their offerings and stated that the majority of other vendors were behind NetScout in terms of " vision, " but the ranking was " subjective and how we feel you stack up." Finally, the Gartner authors attempted to explain what factual response from NetScout would be helpful to its case. The authors said they needed to be provided a written response to the draft MQ so that their group could " pour over everyone's feedback" prior to another phone call to be scheduled during the following week.
NetScout sent a written response on Friday, January 17, 2014 (Plaintiff's Exhibit 172), in which it responded to various points in the MQ evaluation. For example, with respect to the first caution, it stated that, although NetScout's focus was, at the time, on network management, its vision and strategy went beyond that heritage. Its new product, nGeniusONE, enabled it to enter the APM and IT operations analytics markets that Gartner stated NetScout should be focusing on as a next step in its NPMD MQ. With respect to the second caution, it insisted that it also offered a software solution and, alternatively, no one else provided a software solution to network monitoring. With respect to the third caution, it disputed that it lacked reach and mind share, as evidenced by its market share and growth. Finally, regarding the Challenger definition, NetScout asserted that it worked closely with its clients in achieving innovation, both through research and development as well as strategic acquisitions. The cover memo to this document said, " We recognize that your assessments and reviews are solely a matter of factual accuracy and completeness. In light of this, please find attached our comments and draft review to outline the relevant facts we believe we may have miscommunicated or may not have been clear. We look forward to our discussion next week and stand ready to provide additional evidence or clarifications as may be needed."
In response, on Monday, January 20, 2014 (Defendant's Exhibit 2), one of the MQ authors told the NetScout personnel that they would " review the criteria which composed your scores compared to the median, " but that they needed " specific changes to the text . . . before the call today, that will be the one time to discuss both the positioning and the text write-up for NetScout." NetScout did not provide any suggested text and the telephone call scheduled for January 20th did not occur.
NetScout's C.E.O. Intervenes
NetScout's Chief Executive Officer, Mr. Anil Singhal (Singhal), instructed NetScout employees on January 19, 2014 to cease communication with Gartner. On January 22, 2014, Singhal wrote to the Chief Executive Officer of Gartner, Mr. Eugene Hall (Hall), to indicate his displeasure with being ranked as a Challenger. Mr. Hall forwarded this communication to Gartner's ombudsman, Ms. Nancy Erskine (Erskine). Ms. Erskine called Mr. Singhal in order to review the matter with him and explain Gartner's ombudsman appeal process relating to its MQs.
Mr. Singhal refused to participate in the appeal process, but offered his opinion as to how superior NetScout was to its competitors and how unknowledgeable and/or deceitful Gartner was with respect to its findings in the NPMD MQ, and that he was upset that he had to interact with Ms. Erskine rather than Mr. Hall. After receiving further background on the authors' ratings, Mr. Singhal threatened legal action if NetScout was not placed among the Leaders or withdrawn from the NPMD MQ entirely. Ms. Erskine and a colleague determined that their review of the NetScout rating and evaluation revealed no factual inaccuracies and authorized its publication.
Distribution of the NPMD MQ
On March 6, 2014, the NPMD MQ report was published and made available to 40, 000 Gartner subscribers, 4, 000 of whom viewed the report. Copies of the report were also made available to the vendors reviewed within the report for the purposes of marketing their products to end users. Although NetScout challenges the timing of the more than 4, 000 views made by Gartner subscribers as potentially occurring after the commencement of the present litigation, NetScout does not disagree that approximately 18, 700 reprints were purchased by vendors for the purposes of marketing.
Pressure from Gartner to Buy Services
As mentioned previously in this decision, Gartner sells its research as well as consulting services to many of the vendors it reviews. NetScout points to several interactions between Gartner and NetScout employees, which it says constitutes proof of pressure on NetScout to spend more money on Gartner's services in return for receiving a better MQ rating.
1. In January of 2013, six months before the NPMD MQ was announced, eight months before NetScout and other vendors were invited to participate, and fourteen months before the NPMD MQ was published, Julie Dempster (Dempster), a Gartner salesperson newly assigned to the NetScout account, presented three proposals to NetScout in advance of NetScout's contract renewal in March of 2013. The most optimal option according to Dempster's presentation was a two-way consultative relationship that would contain both analyst inquiry and Strategic Advisory Services (SAS), which are face-to-face strategic sessions with Gartner analysts. Dempster and one of the Gartner analysts who would be an author the NPMD MQ, Jonah Kowall (Kowall), both interacted with Roger Fortier (Fortier) at NetScout, who was manager of analyst and public relations. NetScout stresses as evidence of improper pressure placed upon NetScout an e-mail sent by Kowall to Fortier, also in January of 2013, wherein Kowall states: " I want to fix things as you do, but I cannot take the initiative since I cover a massive amount of vendors, almost all of them are clients." NetScout argues that by " fix things, " Kowall implied a " pay-for-play" scheme. Reading further into the record, however, reveals that this e-mail was in response to an e-mail from Fortier to Kowall wherein Fortier expresses his desire for change and an improved relationship.
2. NetScout also cites deposition testimony as evidence that Gartner salespersons implied a higher ranking in exchange for consulting fees. (Pl.'s Mem. Opp'n, p. 21, Docket Entry No. 384, citing Shalita Dep., Pl.'s Ex. 29, pp. 129-30, Docket Entry No. 391). Steve Shalita (Shalita), NetScout's former Vice President of Marketing, denied at his deposition that Gartner ever specifically indicated that NetScout would receive favorable treatment in exchange for consulting fees. (Shalita Dep., Pl.'s Ex. 29, p. 129, Docket Entry no 391.) Shalita testified that such exchange was implied, without identifying any particular statement from which he inferred this implication, or to the extent that he did identify a statement, he did not provide the identity of the employee at Gartner who allegedly made the statement. (See Shalita Dep., Pl.'s Ex. 29, pp. 129-31, 134-35, Docket Entry no 391.) Such evidence constitutes inadmissible hearsay; see Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 788-89, 734 A.2d 112 (1999); New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 757-58, 680 A.2d 301 (1996); and will not be considered for the purposes of this decision.
The court notes that NetScout alleges in its complaint, at Paragraph 114, " As one Gartner analyst had previously told NetScout's President and Chief Executive Officer, 'NetScout is not going anywhere because it does not spend enough on marketing.'" No evidence relating to this assertion was submitted in connection with the summary judgment and it, too, constitutes inadmissible hearsay.
Revenue vs. Ranking
In its memorandum in opposition to the motion for summary judgment, NetScout presents a table setting forth the amount of revenues paid to Gartner by twelve of fifteen vendors listed on the NPMD MQ alongside their rankings in the MQ (see table above). All three of the Leaders spent more money with Gartner than did NetScout. Two vendors received Challenger rankings, including NetScout and CA Technologies, which spent twenty times more money than NetScout in 2013. Two vendors received comparable ratings as Visionaries, including one vendor that spent only third of what NetScout spent in 2013 and one vendor, HP (Hewlett Packard), which spent more than one hundred times what NetScout spent in 2013. Five vendors received the lowest Niche Player rating, with one spending fifty percent more than NetScout in 2013, and the other four spending less. Without removing CA Technologies and HP from the analysis, Netscout's expert found no correlation between spending for Gartner's services and a vendor's ranking in the NPMD MQ rating. SOF 229-37.
Additional facts will be set forth as necessary.
DISCUSSION OF COUNT TWO (DEFAMATION AND DEFAMATION PER SE)
Because Count One sounding in violation of CUTPA is dependent upon the court's conclusions as to Count Two sounding in defamation and defamation per se, the court will first address Count Two.
The distinction between defamation and defamation per se is that defamation per se is " apparent on the face of the statement and is actionable without proof of actual damages." Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 850, 863 A.2d 735 (2005). This distinction is not relevant to this consideration of summary judgment, and the two theories will be considered together.
A. The Summary Judgment Standard
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle [it] to a judgment as a matter of law." (Internal quotation marks omitted.) Recall Total Information Management, Inc. v. Federal Ins. Co., 147 Conn.App. 450, 456, 83 A.3d 664 (2014), aff'd, 317 Conn. 46, 115 A.3d 458 (2015). " [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). " The existence of the genuine issue of material fact must he demonstrated by counter-affidavits and concrete evidence." (Internal quotation marks omitted.) Bruno v. Whipple, 162 Conn.App. 186, 214, 130 A.3d 899 (2015), cert. denied, 321 Conn. 901, 138 A.3d 280 (2016). " To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue." Trotta v. Branford, 26 Conn.App. 407, 412, 601 A.2d 1036 (1992).
" The test of the requirement for the granting of a summary judgment that the moving party be entitled to judgment as a matter of law is resolved by applying to the established facts the same criteria as used in determining whether a party would be entitled to a directed verdict on the same facts." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969). " A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion . . . Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation." (Internal quotation marks omitted.) Curran v. Kroll, 303 Conn. 845, 856, 37 A.3d 700 (2012). A motion for summary judgment " is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985); Al Dente, LLC v. Consiglio, 171 Conn.App. 576, 587, 157 A.3d 743 (2017); Beebe v. East Haddam, 48 Conn.App. 60, 64, 708 A.2d 231 (1998).
B. Defamation and the First Amendment
" Although defamation claims are rooted in the state common law, their elements are heavily influenced by the minimum standards required by the [f]irst [a]mendment . . . At common law, [t]o establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement . . .
" Beyond these common-law principles, there are numerous federal constitutional restrictions that govern the proof of the tort of defamation, the applicability of which varies with (a) the status of the plaintiff as a public or private figure, and (b) whether the subject of the speech is a matter of public or private concern. Thus, there are four possibilities: (1) public person/public matter, (2) private person/public matter, (3) public person/private matter, and (4) private person/private matter." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 430-31, 125 A.3d 920 (2015).
" [W]hen an allegedly defamatory statement is made about a plaintiff who is a private figure, but relates to a matter of public concern, those defamatory statements must be provably false, and the plaintiff must bear the burden of proving falsity, at least in cases where the statements were directed towards a public audience with an interest in that concern." (Internal quotation marks omitted.) Id., 444. If, however, the court determines that NetScout is a public figure, and the communication relates to a matter of public concern, the burden is on NetScout to show both that the statement was false; see Philadelphia Newspapers v. Hepps, 475 U.S. 767, 775, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (" a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation"); and, by clear and convincing evidence, that the statement was made with " actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not." (Internal quotation marks omitted.) Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991).
1. Commercial Speech
As an initial matter, NetScout claims that Gartner's NPMD MQ constitutes commercial speech for the purposes of the First Amendment, largely because Gartner sold reprints to vendors wishing to share them with their customers. Whether the speech at issue fits within the definition of commercial speech has an impact on the constitutional protection afforded because commercial speech is not protected to the same extent as noncommercial speech. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 623-24, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995) (" We have always been careful to distinguish commercial speech from speech at the First Amendment's core. [C]ommercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to modes of regulation that might be impermissible in the realm of noncommercial expression" [internal quotation marks omitted]).
NetScout's argument that Gartner's MQ is commercial speech, however, is unpersuasive because " commercial speech [is] speech that does no more than propose a commercial transaction, " (citations omitted; internal quotation marks omitted), Harris v. Quinn, 134 S.Ct. 2618, 2639, 189 L.Ed.2d 620 (2014). Here, Gartner's MQ does not propose a commercial transaction, but provides an evaluation of a business and its products. The United States Supreme Court has " squarely held that the expression of opinion about a commercial product . . . is protected by the First Amendment . . ." Lowe v. Securities & Exchange Commission, 472 U.S. 181, 210 n.58, 105 S.Ct. 2557, 86 L.Ed.2d 130 (1985). Evidence that NetScout's clients license the MQ for the purposes of promoting their own products does not alter this conclusion. Even if the 20, 000 copies of the NPMD MQ purchased by vendors for the purposes of marketing their reviewed products were considered commercial speech, by reason of their intended use, the 4, 000 views effected by the 40, 000 direct subscribers to Gartner's research with access to the report is unrelated to advertising, and therefore, does not constitute commercial speech. For the foregoing reasons, the limitations on First Amendment protection associated with commercial speech are not applicable here.
2. Fact or Opinion
On the other hand, Gartner preliminarily claims that the MQ's evaluation of NetScout constitutes a matter of opinion and so cannot be considered defamatory. " The threshold question is whether, as a matter of law, the statement is an expression of fact or mere opinion." Grossman v. Computer Curriculum Corp., 131 F.Supp.2d 299, 312 (D.Conn. 2000). " A defamation claim requires a statement--i.e. an assertion of fact, either explicit or implied, and not merely an opinion, provided the opinion does not imply the existence of undisclosed defamatory facts." (Internal quotation marks omitted.) Gleason v. Smolinski, 149 Conn.App. 283, 309, 88 A.3d 589 (2014), rev'd on other grounds, 319 Conn. 394, 125 A.3d 920 (2015). " To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999).
" This distinction between fact and opinion cannot be made in a vacuum, however, for although an opinion may appear to be in the form of a factual statement, it remains an opinion if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated . . . Thus, while this distinction may be somewhat nebulous . . . [t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact." (Citations omitted; emphasis in original; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111-12, 448 A.2d 1317 (1982). " Statements that are relative in nature and depend largely upon the speaker's viewpoint are expressions of opinion." Fuste v. Riverside Healthcare Assn., Inc., 265 Va. 127, 132, 575 S.E.2d 858 (2003). " [C]olloquial and figurative expressions used to embellish facts that are disclosed" are nonactionable opinions. Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 121-22. The determination of whether an allegedly libelous assertion can reasonably be characterized as either a fact or an opinion may be resolved as a question of law. See id., 110-11. " Where the court cannot reasonably characterize the allegedly libelous words as either fact or opinion . . . this becomes an issue of fact for the jury . . ." Id., 112 n.5.
The general classification of NetScout as a " Challenger" rather than a " Leader, " standing alone, is purely relative in nature and, therefore, is non-actionable opinion. Because each statement should be viewed in the context of the entire NPMD MQ, however, the court must consider whether the criteria describing a " Challenger" contain actionable fact. A juror could reasonably interpret " currently struggling to deal with new technical demands and rising expectations" and " architectures, features sets and pricing structures that require modernization (often in progress) to better compete with those in the Leaders quadrant" to be factual in nature, or at the very least, to imply undisclosed facts. Thus, the court concludes that it would be inappropriate to construe them as non-actionable on summary judgment. As for comments pertaining specifically to NetScout in its respective " cautions" section, this court has already concluded that particular statements therein are properly alleged as capable of being proven false. See NetScout Systems, Inc. v. Gartner, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6022988-S (December 15, 2015, Lee, J.) (61 Conn. L. Rptr. 477, 482, ).
The evidence submitted on summary judgment is sufficient to support the same conclusion because the allegations in the operative complaint were accurate quotations of the actual statements in the NPMD MQ. Although the statements " limited ability to expand beyond its network management heritage, " and " perceived as a conservative stalwart in the NPMD space, and lacks the reach and mind share that many smaller competitors have, " might reasonably be interpreted as colloquial or figurative statements of opinion, that NetScout offers " only a hardware-based deployment model" that " limits its ability to address growing software and SaaS solution demand" could be interpreted as fact-based statements that properly form the basis of a defamation action. For the foregoing reasons, although each statement forms a separate cause of action for which NetScout would need to prove the elements of defamation at trial, NetScout's claim will not fail at the summary judgment stage as non-actionable opinion.
C. Limited Purpose Public Figure
Gartner next claims that NetScout is a limited purpose public figure for purposes of First Amendment protection of the statements in the MQ. Whether a person is a public figure or a private individual is an issue of law for the court to decide. Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966).
" [A]n individual's status as a public figure for defamation purposes may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions." (Internal quotation marks omitted.) Gleason v. Smolinski, supra, 319 Conn. 440-41 n.37. " [I]n determining whether an individual is a public figure, courts must look to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation." (Internal quotation marks omitted.) Skakel v. Grace, 5 F.Sup.3d 199, 210 (D.Conn. 2014).
The Second Circuit has set forth a rule that, in order to be considered a limited purpose public figure, " [a] defendant must show the plaintiff has: (1) successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of litigation; (2) voluntarily injected himself into a public controversy related to the subject of the litigation; (3) assumed a position of prominence in the public controversy; and (4) maintained regular and continuing access to the media." Lerman v. Flynt Distributing Co., 745 F.2d 123, 136-37 (2d Cir. 1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); see also Hundley v. ESPN Productions, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 10 6005348-S, (January 29, 2013, Genuario, J.) (applying test in Connecticut).
A public controversy has been defined as " any topic upon which sizeable segments of society have different, strongly held views." Lerman v. Flynt Distributing Co., Inc., supra, 745 F.2d 138. " A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way." Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296, 201 U.S.App.D.C. 301 (D.C. Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980).
The undisputed facts adduced in connection with the present motion make it clear that NetScout satisfies the criteria for characterization as a limited purpose public figure. The varying rankings of NetScout with respect to its competitors, (see Def.'s Ex. 114; Docket Entry No. 361), address a controversy with the potential to impact major corporations, the military, banks, and financial service providers. NetScout alleges that its customers include " 92 of the Fortune 100 companies (including all five of the top five), 370 of the Fortune 500 companies, . . . all five branches of the U.S. military" and numerous commercial banks, airlines and cellular, cable and internet services. Revised Complaint at ¶ ¶ 8, 23, 130. End users that subscribe to publications like Network World and follow industry awards represent a segment of the public that cares about the resolution of this controversy. Furthermore, NetScout alleges that resolution of this question influences these users' choices (see Revised Complaint ¶ 142, Docket Entry No. 131), choices that NetScout's own clients, like CareerBuilder, have acknowledged affect the general public. For example, the Director of Global Site Operations at CareerBuilder cited the importance of network and application monitoring, and how this affects the user experience of the public that utilizes the company's website in search of employment. (See Def.'s Ex. 105, p. 3, Docket Entry No. 361.) Accordingly, the status of NetScout with respect to its competitors and relative performance of its products constitutes a controversy of significant interest to many businesses and other users of internet-based services.
The court further concludes that NetScout satisfies the four specific factors set forth in Lerman, supra, 745 F.2d. 136-37, for evaluating its status as a limited purpose public figure. First, it successfully invited public attention to its views in an effort to influence others prior to the issuance of the MQ. NetScout retained the services of public relations firms prior to the date of the publication of the MQ to place and draft articles, secure product reviews, and conduct media outreach. (Def's Ex. 103, p. 5, Docket Entry No. 361; Def.'s Ex. 104, p. 5, Docket Entry No. 361.) From 2012 to 2014, one of these public relations firms contacted fifty to sixty reporters on a regular basis. (Def.'s Ex. 102, pp. 179-80, Docket Entry No. 361; see also NetScout's Responses to Gartner's Amended Statement of Undisputed Facts, ¶ 23, Docket Entry No. 389.) NetScout publicized its positive press coverage in its own press releases. (NetScout's Responses to Gartner's Amended Statement of Undisputed Facts, (¶ 29, Docket Entry No. 389.) On June 18, 2013, NetScout issued a press release touting its " convergence of application and network management (APM and NPM) into a single platform, " (Def.'s Ex. 105, Docket Entry No. 361; see also NetScout's Responses to Gartner's Amended Statement of Undisputed Facts, ¶ 12, Docket Entry No. 389), i.e., one of the issues addressed by the NPMD MQ. The same press release declared NetScout as " the market leader in . . . enabling comprehensive end-to-end network and application assurance." (Def.'s Ex. 105, p. 5, Docket Entry No. 361; see also NetScout's Responses to Gartner's Amended Statement of Undisputed Facts, ¶ 13, Docket Entry No. 389.)
Second, NetScout injected itself into the controversy by its publicity and when it submitted its application to Gartner to be included in the NPMD MQ. (Def.'s Ex. 245, Docket Entry no 368; see also NetScout's Responses to Gartner's Amended Statement of Undisputed Facts, ¶ 119, Docket Entry No. 389.)
Third, it assumed a position of prominence in the controversy. On October 23, 2013, Network World named NetScout one of the ten most powerful network management companies in the world, reporting that researchers said that NetScout " appears well-positioned for the future." (Def.'s Ex. 112, Docket Entry No. 361; see also NetScout's Responses to Gartner's Amended Statement of Undisputed Facts, ¶ 26, Docket Entry No. 389). NetScout was named as a finalist in the Networking category of the " Best of Interop awards program, " which " is designed to recognize some of the world's most innovative technologies . . .'" (Def.'s Ex. 113, Docket Entry No. 361; see also NetScout's Responses to Gartner's Amended Statement of Undisputed Facts, ¶ 26, Docket Entry No. 389.
Fourth, NetScout maintained regular and continuing access to the media. As discussed above, NetScout regularly and successfully used public relations firms to directly inject itself into this controversy, establish a position of prominence therein, and provide continuing access to the press.
NetScout contends that general advertising alone cannot confer general purpose public figure status, relying on the decision in Mitre Sports International Ltd. v. Home Box Office, Inc., 22 F.Supp.3d 240, 250 (S.D.N.Y. 2014); but see Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 274 (3d Cir. 1980) (" through its advertising blitz, [the plaintiff] invited public attention, comment, and criticism [as to the quality of its beef]"). This observation is beside the point because the issue here is not whether NetScout is a public figure for all purposes but whether it is a limited purpose public figure with respect to the issues raised by the NPMD MQ. In Mitre Sports, the court also declined to find that the plaintiff was such a limited purpose public figure because it had not voluntarily injected itself into the particular controversy at issue, i.e., child labor in the production of soccer balls. Id., 22 F.Sup.3d 251-52. In this case, NetScout's efforts exceeded advertising and included extensive efforts to obtain favorable and persuasive press coverage occasionally at the expense of its competitors.
In summary, within the worldwide community of network service providers, faced with accelerating and divergent technology, NetScout's prominence in the field, its frequent interjection of statements as to the capacity and superiority of its products, and its access to the media, made it a limited purpose public figure as to the topics discussed in Gartner's NPMD MQ.
D. Public Concern
Having found that NetScout should be considered a limited purpose public figure, the court next addresses whether the subject matter of the NPMD MQ should be considered a matter of public concern within the meaning of First Amendment jurisprudence.
" Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community . . . or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public . . . Our opinion in Dun & Bradstreet, Inc., on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual's credit report concerns no public issue. [ Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1984).] The content of the report, we explained, was speech solely in the individual interest of the speaker and its specific business audience. Id. That was confirmed by the fact that the particular report was sent to only five subscribers to the reporting service, who were bound not to disseminate it further. Id. To cite another example, we concluded in San Diego v. Roe [543 U.S. 77, 84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004)] that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos did nothing to inform the public about any aspect of the [employing agency's] functioning or operation." (Internal quotation marks omitted.) Snyder v. Phelps, 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011). See also Gleason v. Smolinski, 319 Conn. at 414-15 (adopting Snyder approach to public concern). " Deciding whether speech is of public or private concern requires us to examine the content, form, and context of that speech, as revealed by the whole record." (Internal quotation marks omitted.) Snyder v. Phelps, supra, 562 U.S. 453.
Unlike at the motion to strike stage of the present action, this court has a full record from which to determine whether Gartner's statements involved a matter of public concern. The NPMD MQ was available to 40, 000 subscribers, of whom 4, 000 viewed the report, in contrast to only five creditors who had received the plaintiff's credit reports in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., supra, 472 U.S. 762. Moreover, readers of the NPMD MQ were not limited to Gartner's subscribers; approximately 18, 700 copies were purchased by vendors for distribution as marketing material to organizations that rely on NPMD products to ensure that their networks function properly. Unlike San Diego v. Roe, supra, 543 U.S. 84, the NPMD MQ informs readers about the functioning of NetScout's products, which assist major corporations, banks, and the United States armed forces in ensuring that consumer transactions go smoothly, savings accounts and pension funds are managed properly, and defense systems are operated at their optimal capacity. As mentioned above, the sales of NetScout's products in 2013 amounted to hundreds of millions of dollars, which was a sub-set of the sales of all the vendors rated in the MQ. See TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1185-86 (10th Cir. 2007) (efficacy of dental implants constitutes legitimate concern to thousands of patients and dentists using them); Unelko Corp. v. Rooney, 912 F.2d 1049, 1056 (9th Cir. 1990) (unfavorable televised review of windshield cleaner constituted product review of legitimate public concern). For the foregoing reasons, there is no issue of material fact that the statements were of public concern.
E. Actual Malice
As noted above, " [I]f the plaintiff is a public figure . . . the plaintiff also must prove that the defamatory statement was made with actual malice, such that the statement, when made, [was] made with actual knowledge that it was false or with reckless disregard of whether it was false." (Internal quotation marks omitted.) Gleason v. Smolinski, supra, 319 Conn. at 431.
" The determination of whether a plaintiff is a public figure is dispositive of the standard of proof and the degree of fault of the defendants which the plaintiff ha[s] to prove. Under the rule enunciated by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), as later extended [to a public figure] in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), a public figure . . . cannot recover damages for a defamatory falsehood, absent clear and convincing proof that the defamatory falsehood was published or broadcast with actual malice, that is, with knowledge that the statement was false or with reckless disregard for its falsity." Miles v. Perry, 11 Conn.App. 584, 588, 529 A.2d 199 (1987).
" Mere negligence does not suffice." Masson v. New Yorker Magazine, Inc., supra, 501 U.S. 510. Much of NetScout's discussion relating to Gartner's allegedly defamatory statements is couched in terms of negligence. However, because this court has already determined that NetScout is a limited purpose public figure, liability does not attach to negligently made false statements, but only to those made with actual malice.
" The phrase 'actual malice' is unfortunately confusing in that it has nothing to do with bad motive or ill will. Harte-Hanks Communications, Inc. v. 1105 Connaughton, 491 U.S. 657, 666, 109 S.Ct. 2678, 105 L.Ed.2d 562 n., 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). The real question to be addressed by the court is whether the allegedly defamatory publication was made 'with knowledge of falsity or reckless disregard as to truth or falsity.' Masson v. New Yorker Magazine, Inc., supra, 501 U.S. 511 . . . [I]t is the burden of the plaintiff to prove malice, thus defined, by clear and convincing evidence." Jones v. New Haven Register, Inc., 46 Conn.Supp. 634, 648-49, 763 A.2d 1097 (2000, Blue, J.) . " A speaker acts with reckless disregard of the falsity of his statement if he 'entertained serious doubts as to the truth' of his statement. Chandok v. Klessig, 632 F.3d 803, 813 (2d Cir. 2011), quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). A failure to investigate will not suffice to establish liability; rather, the plaintiff must demonstrate a 'purposeful avoidance of the truth.' Harte-Hanks Communications, Inc. v. Connaughton, [ supra, 491 U.S. 692]." Jones v. Town of Westbrook, Superior Court, judicial district of Middlesex, Docket No. CV 11 6004146, Id. at *9 (January 16, 2013, Aurigemma, J.).
" [I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden." (Internal quotation marks omitted.) Johnson v. Meehan, 225 Conn. 528, 535, 626 A.2d 244 (1993), quoting Anderson v. Liberty Lobby, 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " [T]he clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions . . ." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 255 (libel action brought by limited purpose public figure). " [T]here is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence." Id., 254.
Perhaps because of the stringent standard of proof, i.e., clear and convincing evidence, our courts have frequently granted summary judgment regarding the adequacy of proof of malice. In Fuller v. Day Publishing Company, 89 Conn.App. 237, 240 n.2, 872 A.2d 925, cert. denied, 275 Conn. 921, 883 A.2d 1244 (2005), the Appellate Court affirmed summary judgment for defendant and stated, " We likewise conclude that the plaintiff failed to demonstrate that a genuine issue of material fact existed concerning her allegation that the defendants acted with actual malice"); Pugliese v. Grande, Superior Court, judicial district of Tolland, Docket No. CV 08 5003753S, Id. at *10 (March 7, 2011, Bright, J.) (" On a motion for summary judgment, the appropriate question is whether the evidence in the record could support a reasonable jury finding that the plaintiff has shown actual malice by clear and convincing evidence"); Jones v. New Haven Register, Inc., supra, 46 Conn.Supp. at 649 (" A careful review of the evidence submitted by the parties firmly establishes that the plaintiff here is unable to meet this burden"); see also Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 537, 906 A.2d 14 (2006) (" Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]"); Sambuco v. Martin, Superior Court, judicial district of Waterbury, Docket No. CV 12 6016554, Id. at *3 (June 15, 2017, Shah, J.) (" The plaintiff has failed to satisfy the actual malice standard by clear and convincing evidence because no jury could reasonably find, based on the evidence submitted, that the defendant's statement was knowingly false or made with a reckless disregard for the truth").
After extensive discovery, NetScout marshals the following contentions in an effort to satisfy its burden by clear and convincing evidence that Gartner made defamatory statements in the MQ with actual malice:
1. " Gartner analysts genuinely believed that NetScout was a leader in the NPMD market" (see Pl.'s Mem. Opp'n, p. 2, Docket Entry No. 384), but did not place it in the Leader category;
2. NetScout's position in the MQ was manipulated after it decided not to engage in a " SAS day, " i.e., a paid visit with a Gartner analyst (see Pl.'s Mem. Opp'n, p. 26, Docket Entry No. 384); and
3. " Prior to the publication of the NPMD MQ, NetScout communicated to Gartner's analysts and officers that the statements were incorrect, and provided evidence as to why, but Gartner published the false statements nonetheless." (See Pl.'s Mem. Opp'n, p. 69, Docket Entry No 384; Responses to Gartner's Amended Statement of Undisputed Facts, ¶ ¶ 154, 165, Docket Entry No. 389.) While NetScout does not specify which statements were discussed with the analysts, it had previously argued that the following statements in the MQ were factually false:
a. NetScout did not serve the APM market and lacked the technical ability to expand into it;
b. NetScout failed to have a SaaS solution while the Leaders offered such solutions;
c. NetScout lacked the ability to serve portions of the NPMD market because it lacked " reach"; and
d. NetScout's business, in terms of its pricing structure, and its products' technical architecture and features, were outdated and could not satisfy the " technical demands" that the Leaders' technologies were able to address.(Pl.'s Mem. in Opp'n., p. 67-8, Docket No. 384).
Without addressing the question of whether these statements were or were not substantially correct, the court concludes that NetScout has failed to present clear and convincing evidence that Gartner knew or was recklessly indifferent as to whether such statements were false. For example, with reference to the foregoing list:
1. While NetScout cites various references to itself as a leader by Gartner employees, only one was in the context of the preparation of the MQ. The record is replete with evidence that Gartner employees believed that NetScout was a leader in terms of market share, and the statements could simply have been in reference to market share, which would be consistent with labeling NetScout a " Challenger" in the MQ, (see Def.'s Ex. 202, p. 19, Docket Entry No. 366) (" Challengers consist of those with high market reach and large deployments"), as well as the " strengths" attributed specifically to NetScout, (see Def.'s Ex. 202, p. 10, Docket Entry No. 366) (" NetScout has a large market share in the NPMD market space, with a strong and loyal customer base"). The statements, therefore, do not compel the conclusion that the speakers believed NetScout met the qualifications of a " Leader" for the purposes of the MQ. Evidence that, while formulating the weightings which determine how the vendors were ranked in the MQ, one of the authors thought NetScout should be a " Leader" in the MQ graphic, (see Pl.'s Ex. 71, Docket Entry No. 392), indicates that the authors were openly debating NetScout's position, i.e., that the rankings were not assigned based on actual malice, but on active discussion as to where the vendors should be placed.
2. NetScout's argument that its position was manipulated after it decided not to engage in a half-day of SAS services; (see Pl.'s Mem. Opp'n, p. 26, Docket Entry No. 384), which meant it would not pay Gartner $7,000, is belied by the fact that, in iterations of the graph following this cancellation, NetScout's position actually improved, and the authors were advocating for such improvement. (See Pl.'s Exhibits 70, 72, Docket Entry No. 392.) In fact, in the final published version, NetScout's position relative to the Leaders improved in terms of " ability to execute." (See Def.'s Ex. 202, Docket Entry No. 366.) Finally, NetScout paid a six figure sum to Gartner for its services in 2013, of which $7,000 represents a miniscule percentage.
3. The actual evidence of the discussion between NetScout personnel and Gartner analysts regarding the draft MQ shows that the concerns listed in 3(a-d), above, were discussed between the parties at length, and that the Gartner analysts explained the basis for the statements. Further, the analysts asked NetScout to provide facts and suggested language as a prelude to engaging in a more extensive review in another conference call. Far from demonstrating actual knowledge of falsity or recklessness, the evidence cited by NetScout shows that the Gartner analysts were acting in good faith. NetScout's CEO prevented any continuing dialogue or participation in the ombudsman review process. All of these statements were made within the context of explaining Gartner's findings, demonstrating the opposite of malice: a genuine belief in the truth of the statements, and a willingness to engage with NetScout as to how such statements might be proved incorrect. Further, the authors' conclusions were confirmed by Gartner's internal review process prior to publication.
[5]Section 53a-119(5) provides in relevant part: " Extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself . . . by means of instilling in him a fear that, if the property is not so delivered, the actor . . . will . . . expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule . . ." The exhibit referenced by NetScout consists of notes taken by NetScout of a January 14, 2014 call, during which Gartner analysts responded to NetScout's objections to the NPMD MQ. (Pl.'s Ex. 153, Docket Entry No. 396). During this call, Gartner analysts advised NetScout to respond with factual " proof points." (Pl.'s Ex. 153, Docket Entry No. 396). With respect to IT operations analytics, one of the Gartner analysts explained: " [l]ooking at the network functions, I don't see you being used in place of or replacing broader ITOM solutions across apps support teams." (Pl.'s Ex. 153, Docket Entry No. 396.) Gartner analysts asked NetScout representatives to provide evidence that it could provide a full SaaS solution, and rather than refuting NetScout's inability to do so, NetScout claimed that no one else was able to provide one. (See Pl.'s Ex. 153, Docket Entry No. 396.) In the midst of explaining how NetScout's competitors demonstrated vision where NetScout failed, Gartner's analyst said " we have to add cautions with everybody, " which was the format of the report. (Pl.'s Ex. 153, Docket Entry No. 396.)
As a result, the court determines that NetScout has not presented clear and convincing evidence that the statements to which it objects in the NPMD MQ were made with actual malice and finds that a jury could not conclude otherwise. Accordingly, Gartner's motion for summary judgment with respect to Count Two of the complaint sounding in defamation and defamation per se is granted.
DISCUSSION OF COUNT ONE (VIOLATION OF CUTPA)
In its claim for violation of CUTPA, NetScout's complaint alleges that Gartner's purportedly unbiased ratings of NetScout and other vendors were, instead, biased in favor of the vendors that were Gartner's highest paying customers. NetScout claims that this constitutes an unfair trade practice within the meaning of CUTPA, which provides that " [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." § 42-110b(a).
A. The First Amendment and the Speech at Issue
The only evidence of CUTPA damages presented by NetScout in opposition to the present motion flows from the content of the allegedly defamatory statements in the MQ. As a result, NetScout's CUTPA count is precluded by the First Amendment protections discussed above. As Judge Blue noted in the frequently cited decision in Jones v. New Haven Register, Inc., supra, 46 Conn.Supp. at 649-50 (2000). For these reasons, the plaintiff's case is, at best, a case of negligence built on the sand of surmise. It is emphatically not a case of malice established on the rock of clear and convincing evidence. The First Amendment principles discussed above are dispositive of the plaintiff's libel claim. Because his claims of invasion of privacy, negligent infliction of emotional distress, intentional infliction of emotional distress, and CUTPA violation attack the same act of protected speech, the principles that have been identified are dispositive of those claims as well. Time, Inc. v. Hill, 385 U.S. 374, 387-88, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967).
Similarly, the court dismissed the CUTPA count after finding a failure to show actual malice in the defamation count in Fuller v. Day Publishing Co., supra, Superior Court, judicial district of New London, Docket No. CV 03 0565104 (February 23, 2004, Gordon, J.), aff'd, 89 Conn.App. 237, 872 A.2d 925, cert. denied, 275 Conn. 921, 883 A.2d 1244 (2005):
The plaintiff, in response, has failed to raise any genuine issues of material fact with regard to whether the defendants acted with actual malice, thus abusing their qualified privilege. The plaintiff likewise cannot sustain the remaining twenty counts of her amended complaint [including CUTPA] because they are based on the same privileged speech. Jones v. New Haven Register, Inc., supra, 46 Conn.Supp. at 650.
In Time, Inc., the Supreme Court held that a finding of actual malice was essential to overcome constitutional protection of an invasion of privacy claim premised on speech of public interest. See Time, Inc. v. Hill, supra, 385 U.S. 387-88 (" We hold that the constitutional protections for speech and press preclude the application of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth"). As a result, NetScout's CUTPA count would be precluded by the failure of its defamation count.
NetScout attempts to circumvent this result with two arguments. First, it argues that extortionate speech is not protected by the First Amendment citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 93 L.Ed. 834 (1949) and U.S. v. Petrovic, 701 F.3d 849, 852-55 (8th Cir. 2012), and, therefore, that its CUTPA count should survive summary judgment. However, NetScout has not adduced any evidence approaching the crime of extortion, which is complete when property is obtained by means of instilling in the victim a fear that an asserted fact will be publicized. See § 53a-119(5)(E). Among other things, the claim here is that harmful information was published because of NetScout's failure to buy more services, there was no alleged pay-off to prevent publication. Therefore, even if the court were to conclude that the alleged pay-to-play scheme rose to the level of extortion, which it does not, and even if the court were to conclude that extortion is not protected by the First Amendment, which it need not, the publishing of the NPMD MQ would remain subject to First Amendment protection because it was not part of the act of extortion. Further, NetScout does not allege or argue any damages as a result of pressure exerted upon NetScout to pay Gartner. Rather, NetScout claims it was harmed because it did not succumb to Gartner's alleged pay-to-play scheme. (See Pl.'s Mem. Opp'n, pp. 50-52, Docket Entry No. 384); but, to the extent that NetScout challenges the same statements in its CUTPA claim as it did in its defamation claim, the First Amendment precludes liability.
Second, NetScout alleges that Gartner violated CUTPA by falsely representing the independence of its reports. For the premise that such representation is not protected by the First Amendment and can support a CUTPA claim, NetScout relies on the decision in State v. Moody's Corp., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-10-6008836-S (May 10, 2012, Bright, J.) [54 Conn. L. Rptr. 116, ], which involved a CUTPA action brought by the State of Connecticut on behalf of investors who allegedly relied upon statements that Moody's credit ratings were independent and objective. The court denied the motion to strike, holding that, while the credit ratings themselves might constitute protected opinion, the statements regarding Moody's independence could be proven as actionable misrepresentations of fact. However, at that stage of the proceedings, the State was not required to demonstrate damages, if ever. Here, NetScout has not adduced any proof of damages from Gartner's assertions of independence and the integrity of its analysis, and its damage experts rely solely on alleged harm from the purportedly defamatory statements of the MQ. As a result, NetScout's CUTPA count must be dismissed.
See also General Statutes Section 42-110m(a): Whenever the commissioner has reason to believe that any person has been engaged or is engaged in an alleged violation of any provision of this chapter said commissioner may proceed as provided in sections 42-110d and 42-110e or may request the Attorney General to apply in the name of the state of Connecticut to the Superior Court for an order temporarily or permanently restraining and enjoining the continuance of such act or acts or for an order directing restitution and the appointment of a receiver in appropriate instances, or both. Proof of public interest or public injury shall not be required in any action brought pursuant to section 42-110d, section 42-110e or this section . The court may award the relief applied for or so much as it may deem proper including reasonable attorneys fees, accounting and such other relief as may be granted in equity. In such action the commissioner shall be responsible for all necessary investigative support. (Emphasis added.)
B. Speculation Does Not Support Finding an Issue of Fact
Alternatively, NetScout's CUTPA count must be dismissed because it has not submitted adequate evidence of causation. Stevenson Lumber Company-Suffield, Inc. v. Chase Assocs., 284 Conn. 205, 214-15, 932 A.2d 401 (2007); Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 306-07, 692 A.2d 709 (1997). The evidence submitted to support NetScout's theory that Gartner's rankings were for sale requires the observer to turn a blind eye to the fact that the evidence simply does not support finding any such issue of fact. As set forth previously in this memorandum, the actual positioning of vendors in the NPMD MQ shows no meaningful correlation between expenditures and rankings, unless, according to NetScout's expert, Gartner's two largest customers, which received rankings identical or comparable to NetScout, are eliminated from consideration. As mentioned above, vendors spending more money with Gartner than NetScout received comparable rankings or a worse one, and a vendor spending less than NetScout received a comparable rating. NetScout's argument that the vendors it seeks to disregard are outliers to be disregarded because they received favorable treatment in other MQs is based on speculation (see Pl.'s Mot. Supp. R., pp. 8-9, Docket Entry No. 434; Def.'s Resp. Pl.'s Mot. Supp. R., p. 12; Docket Entry No. 451). Such manipulation of evidence does not create a genuine issue of material fact or support a question for the jury. Curran v. Kroll, supra, 303 Conn. 856; Bombero v. Warner-Lambert Co., 142 F.Supp.2d 196, 208 (D.Conn. 2000), aff'd, United States Court of Appeals, 9 Fed.Appx. 38 (2d Cir. 2001).
Summary judgment may also be evaluated on a directed verdict standard, United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 380, and the court would not let this claim proceed to the jury on the evidence presented (or more accurately, would grant judgment notwithstanding the verdict). Speculation based on normal profit-centered behavior of a corporation to increase revenues does not, in itself, create an issue of material fact--and the numbers simply do not support NetScout's claim that Gartner's ratings were based on payments received. For the foregoing reasons, the court grants Gartner's motion for summary judgment as to count one sounding in violation of CUTPA.
CONCLUSION
By reason of the foregoing, the defendant's motion for summary judgment is granted in its entirety.