Opinion
FSTCV146022988S
12-15-2015
Netscout Systems, Inc. v. Gartner, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE THE COMRLAINT (#140.00)
Hon. Charles T. Lee, J.
On or about August 5, 2014, plaintiff NetScout Systems, Inc. (" NetScout") commenced this action against defendant Gartner, Inc. (" Gartner") accusing Gartner of violation of the Connecticut Unfair Trade Practices Act, Gen. Stat. § § 42-110b et seq. (" CUTPA"), and defamation and defamation per se. On February 17, 2015, NetScout filed a revised complaint, the first count of which alleged that Gartner's Magic Quadrant ratings of various internet business segments were corrupted by favoritism shown to Gartner's major customers. The second count alleged that the rating and comments given by Gartner to NetScout, although couched as opinion, were defamatory and untrue.
The distinction between a claim for defamation and defamation per se is not relevant to the instant motion, and the court will refer to this count as one for defamation.
On March 19, 2015, Gartner filed a motion to strike both counts of the revised complaint, accompanied by a memorandum of law (#141.00). NetScout filed a memorandum in opposition on May 20 (#167.00), and Gartner filed a reply brief on June 19 (#172.00). The court heard oral argument on July 13. While the motion was sub judice, on November 3, 2015, our Supreme Court issued its decision in Gleason v. Smolinski, 319 Conn. 394, 125 A.3d 920 (2015), which examined the extent of the first amendment's protection of allegedly tortious speech, which is a key factor in the consideration of this motion. Accordingly, the court requested supplemental briefing concerning the effect of the Gleason decision on this case, and the parties filed memoranda on November 16, 2013 (#201.00; 202.00). As more fully discussed below, the motion to strike the complaint is denied.
Positions of the Parties
Gartner argues: (1) that the speech constituting its Magic Quadrant rating, with supporting comments is protected by the first amendment, which is actionable only upon a finding of actual malice; and (2) that it constitutes protected opinion that cannot be proven false; and (3) that the CUTPA claim is based on the same speech, which is constitutionally protected, and therefore does not state a cause of action. NetScout asserts that the first amendment does not apply to the rating or the comments because: (1) NetScout is not a public figure and the speech at issue is not a matter of public concern; (2) it has sufficiently alleged that the speech at issue conveys false statements of fact; and (3) the CUTPA claim is not based on speech, but rather alleges a deceptive and unfair practice of " pay-to-play, " which satisfies the requirements of a CUTPA claim.
The Allegations of the Complaint
" A motion to strike attacks the legal sufficiency of the allegations in a pleading . . . In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein and to determine whether those facts establish a valid cause of action." (Internal quotation marks omitted.) Kortner v. Martise, 312 Conn. 1, 48-49, 91 A.3d 412 (2014). " It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegation are taken as admitted . . . Indeed pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). " [W]hether the plaintiff alleged the facts required . . . must be determined with due regard to the principle that the facts necessarily implied by the allegations in a complaint are sufficiently pleaded, and hence need not expressly be alleged." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). Similarly, " the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). The facts alleged in the revised complaint and relevant to the instant motion are as follows:
NetScout is an established innovator of integrated network performance management (NPM) products, and an industry leader for advanced network, application, and service assurance solutions, meaning that it manufactures, sells, and services technology products that allow a company to manage, monitor, and diagnose its computer network. The company has continued to grow since its formation in 1984. It now sells its products and provides services in more than thirty countries, and its clients include the United States military, airlines, and major commercial banks and financial institutions.
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 (Magic Quadrant), which are designed to aid clients and consumers in making purchases or investment decisions. The Magic Quadrant reports are available online only to paying subscribers, and not to the general public. It is not clear from the allegations of the complaint whether users subscribe only to reports relating to the particular industry segment of interest to them or whether they have access to all of the Magic Quadrant reports in a given year.
The Magic Quadrant is a rating system that positions technology providers into four groupings: " leaders, " " visionaries, " " challengers, " and " niche" players, with " leaders" as the most desirable position, and " niche" players the least. As an influential IT consulting company, Gartner's research reports, including the Magic Quadrant, purportedly influence companies seeking to purchase IT equipment. As a result, being ranked as a " leader" increases a company's sales and revenue.
According to Gartner, an IT company's placement on the Magic Quadrant grid is determined by its " Ability to Execute" and " Completeness of Vision." Gartner additionally provides descriptive comments about the rated company, including its weaknesses, referred to as " cautions." Gartner does not publicly disclose how it rates each vendor, but states that its ratings are based upon Gartner's objective, factual research and analysis.
NetScout alleges, however, that the ranking system is not based on objective facts, but rather on Gartner's " pay-to-play" business model. Gartner's business model seeks to leverage its most valuable clients by cross-selling its services, including its consulting services. An IT vendor that purchases consulting services from Gartner creates a " healthy relationship" with Gartner's analysts, and the more a vendor pays for consulting services, the healthier the relationship becomes. In other words, IT companies that pay Gartner more receive a higher rating. NetScout has never paid Gartner for its consulting services.
On July 19, 2013, Gartner announced its new Magic Quadrant for the network performance monitoring and diagnostic (NPMD) market, and published its criteria for the quadrant. Gartner invited NetScout to participate in the NPMD Magic Quadrant process on September 2, 2013, and NetScout agreed. On October 1, 2013, NetScout submitted a fifty-two-page questionnaire detailing, among other things, its experience, vision, selling strategy, and products' functionality. NetScout communicated regularly with Gartner's analysts in the ensuing months.
A draft of the NPMD Magic Quadrant was released to NetScout on January 9, 2014, in which NetScout received a secondary ranking as a " challenger." NetScout believed that its ranking and the statements contained in the cautions section were incorrect, and contacted Gartner's analysts and other personnel, addressing each of the allegedly incorrect statements contained in the draft. Despite its knowledge that the statements were false, Gartner did not remove them, nor did Gartner grant NetScout's request to be removed from the NPMD Magic Quadrant altogether. On March 6, 2014, the Magic Quadrant report was published and disseminated to Gartner's subscribers of research reports.
Discussion
I. Defamation
" 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." (Citations omitted; footnote omitted; internal quotation marks omitted.) Gleason v. Smolinski, supra, 319 Conn. 430. For the purposes of this motion, Gartner does not contest that NetScout has sufficiently alleged the second, third, and fourth elements: that Gartner published statements to its subscribers identifying NetScout, causing NetScout harm to its reputation. (¶ ¶ 104, 153, 158.) The question before the court concerns the legal sufficiency of the first element, where Gartner has asserted that the alleged defamatory statements are protected by the first amendment, and therefore are not actionable.
A. APPLICATION OF THE FIRST AMENDMENT
" [T]here 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." (Internal quotation marks omitted.) Gleason v. Smolinski, supra, 319 Conn. 431.
Under United States Supreme Court jurisprudence, " if 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.) Id. " [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 the court finds that NetScout is a public figure, it must prove malice. If NetScout is not a public figure, but the speech at issue relates to a matter of public concern, plaintiff must prove that the statements are false. " When the speech is of exclusively private concern and the plaintiff is a private figure . . . the constitutional requirements do not necessarily force any change in at least some of the features of the common-law landscape." Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775, 89 L.Ed.2d 783, 106 S.Ct. 1558 (1986). In other words, if NetScout is not a public figure, and the speech is not a matter of public concern, the first amendment does not apply.
The United States Supreme Court has expressly refrained from addressing the burden of proving falsity when a private figure commences a defamation involving speech that is not a matter of public concern. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775, 89 L.Ed.2d 783, 106 S.Ct. 1558 (1986). While some jurisdictions have adopted a common-law rule allocating the burden of proving falsity, there is no indication that Connecticut has done so. Kuselias v. Southern New England Telephone Co., Superior Court, judicial district of New Haven, Docket No. 91-0322295-S (October 28, 1996, Corradino, J.) (" Where the plaintiff is a private figure and the matter involved is not one of public concern, it is difficult to see how any constitutional issues under the First Amendment are raised that would require a change in the common law allocations of the burden of proof").
1. Public Figure
" [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. " Thus, in 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.Supp.3d 199, 210 (D.Conn. 2014). " In either event, [both types of public figures] invite attention and comment." (Emphasis omitted; internal quotation marks omitted.) Miles v. Perry, 11 Conn.App. 584, 591, 529 A.2d 199 (1987).
While a corporation may be considered a " general purpose" public figure if it is publicly renowned; see, e.g. World Wrestling Federation Entertainment, Inc. v. Bozell, 142 F.Supp.2d 514, 523 (S.D.N.Y. 2001); there is no " assumption that a corporation's interest in protecting its reputation is less important than that of an individual person." Bruno and Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 590 (1st Cir. 1980). Therefore, " even well-known corporations that sell and advertise common products are not general purpose public figures." Mitre Sports International Ltd. v. HBO, Inc., 22 F.Supp.3d 240, 250 (S.D.N.Y. 2014); see also Computer Aid, Inc. v. Hewlett-Packard Co., 56 F.Supp.2d 526, 536 (E.D.Pa. 1999) (despite its status as " one of the largest and most influential corporations in the world with one of the most actively traded stocks on the New York Stock Exchange, " the corporation was not deemed to be a public figure).
As mentioned above, a private plaintiff that voluntarily injects itself into a particular public controversy, inviting comment and attention, may be considered a limited purpose public figure. 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 (2d Cir. 1986); see also Hundley v. ESPN Productions, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-606005348, (January 29, 2013, Genuario, J.) (applying test in Connecticut).
" [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. 431.
According to Gartner, because NetScout is a government contractor, a leader in its market, and generates large revenue, it is a public figure. While NetScout does allege that it is a leader in its specialized field, services the government, major banks, and Fortune 500 companies case law is clear that, absent allegations that the entity is publicly known, NetScout cannot be considered a general purpose public figure solely due to its revenue, government contracts, or influence within a specialized field. Here, Gartner essentially argues that NetScout is a " limited public figure."
Gartner argues that NetScout's profile is elevated due to its dealings with the government; however, Gartner cites to Hutchinson v. Proxmire, 443 U.S. 111, 134-35, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), which held that receipt of government funds is insufficient to confer the status of a public figure.
In the present case, NetScout alleges that Gartner requested NetScout's participation in the NPMD Magic Quadrant rating process and that, before the report was released, that its " CEO asked Gartner to remove NetScout entirely" from the Magic Quadrant. (¶ 102.) The revised complaint contains no allegations that NetScout invited public attention to its dispute with Gartner, that it assumed a position of prominence in the controversy, or that it maintained regular and continuing access to the media. Instead, NetScout alleges that it sought to avoid attention and comment, and there is no indication that it discussed the alleged defamatory statements with anybody other than Gartner. Gartner has therefore not met its burden of showing that NetScout is a public figure and therefore must prove malice.
2. Speech on Matters of Public Concern
" [S]peech on matters of public concern . . . is at the heart of the [f]irst [a]mendment's protection . . . The [f]irst [a]mendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . That is because speech concerning public affairs is more than self-expression; it is the essence of self-government . . . Accordingly, speech on public issues occupies the highest rung of the hierarchy of [f]irst [a]mendment values, and is entitled to special protection." (Internal quotation marks omitted.) Gleason v. Smolinski, supra, 319 Conn. 411. Therefore, as mentioned, " when 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 . . ." (Internal quotation marks omitted.) Id., 444.
" [N]ot all speech is of equal [f]irst [a]mendment importance, however, and where matters of purely private significance are at issue, [f]irst [a]mendment protections are often less rigorous . . . That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: [T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas; and the threat of liability does not pose the risk of a reaction of self-censorship on matters of public import." (Internal quotation marks omitted.) Id. Consequently, " [p]ermitting recovery . . . in defamation cases absent a showing of 'actual malice' does not violate the First Amendment when the defamatory statements do not involve matters of public concern." Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 763, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985).
The imposition of liability for a defamatory statement therefore often hinges on whether the speech is a matter of public or private concern. E.g., Gleason v. Smolinski, supra, 319 Conn. 411; Snyder v. Phelps, 562 U.S. 443, 443, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). " [S]peech 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 . . ." (Internal quotation marks omitted.) Gleason v. Smolinski, supra, 319 Conn. 412. " Further, [d]eciding whether speech is of public or private concern requires [courts] to examine the content, form, and context of that speech, as revealed by the whole record . . . As in other [f]irst [a]mendment cases, the court is obligated to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression . . . In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said." (Internal quotation marks omitted.) Id. " The vehicle, context, and content of the messages remains of paramount importance." Id., 418.
With respect to whether the rating and comments relate to a matter of public concern, the revised complaint contains no allegations from which the court can infer that the Magic Quadrant relates to any " political, social, or other concern to the community." Instead, the allegations state that the statements were published on Gartner's website, and could be accessed only by subscribers of Gartner's research reports. (¶ ¶ 104, 153.) These allegations contrast with the facts in Gleason v. Smolinski, supra, 319 Conn. 394, and Snyder v. Phelps, supra, 562 U.S. 443, a recent United States Supreme Court decision addressing speech on matters of public concern. In Gleason, the defendants placed posters " on or adjacent to public roadways, which are traditional public fora subject to heightened first amendment protection . . ." Gleason, supra, 319 Conn. 421. The posters inferred that the defendant was implicated in the disappearance of plaintiff's son and " [t]he commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions . . . are without question events of legitimate concern to the public." (Internal quotation marks omitted.) Id., 415. In Snyder, protesters likewise held up posters and signs on a public street, which the United States Supreme Court described as " the archetype of a traditional public forum, " because " [t]ime out of mind public streets and sidewalks have been used for public assembly and debate." Snyder, supra, 562 U.S. 456. The signs in this case " [related] to broad issues of interest to society at large" such as " the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic Church . . ." Id., 454
The facts in the present case are closer to those in Dun & Bradstreet v. Greenmoss Builders, supra, 472 U.S. 761-62, where the United States Supreme Court held that the publication of a company's credit rating was a concern only to the parties involved and to a specialized audience that had to subscribe to access the publication. The United States Supreme Court distinguished Snyder from Dun & Bradstreet primarily because the speech in Dun & Bradstreet was not designed " to reach as broad a public audience as possible." Snyder v. Phelps, supra, 562 U.S. 454.
Accordingly, case law is clear that the court must examine the content, form, and context of that speech, as revealed by the whole record when deciding whether the statements contained in the Magic Quadrant are a matter of public concern. The court acknowledges that there were only five subscribers in Dun & Bradstreet, but is unable to ascertain the number of individuals or entities that are able to access the Magic Quadrant. The court also cannot determine from the pleadings whether the audience consists of the general public or solely those interested in purchasing IT products or services. Certainly, " [t]here is no 'magic number' of persons which constitute a public audience"; Carney v. Amendola, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-10-6003738-S, (May 14, 2014, Brazzel-Massaro, J.); but Gartner " cannot elevate a matter into one of public concern merely by saying so." Wilkinson v. Schoenhorn, Superior Court, judicial district of Hartford-New Britain, Docket No. CV-96-0565559-S, (March 24, 1999, Fineberg, J.). Because the record consists only of the revised complaint, the court cannot decide as a matter of law that the speech at issue here is a matter of public concern.
Even if the court were able to conclude definitively from the pleadings that the speech in the Magic Quadrant was a matter of public concern, the court finds that NetScout nevertheless has sufficiently pleaded that Gartner made false statements with malice. In its revised complaint, NetScout has identified specific statements it alleges to be defamatory, and claims that Gartner made these statements with reckless disregard for the truth. (¶ ¶ 117, 124, 132.) More specifically, NetScout alleges that prior to publishing the NPMD Magic Quadrant report, it communicated to Gartner's analysts and officers that the statements were incorrect, and provided evidence as to why, but Gartner published these allegedly false statements nonetheless. (¶ ¶ 100, 101.) According to the revised complaint, after being provided with evidence that the statements were false, a Gartner analyst responded by stating that NetScout needed to have some cautions. (¶ 132.) These allegations are not merely buzz words as Gartner suggests, but arguably contain facts, which if proven true, demonstrate that Gartner disregarded accurate information that NetScout provided.
B. PROTECTED OPINION
Connecticut law, like federal law, follows the rule that " [t]he privilege of fair comment is a common law qualified privilege arising out of an occasion to express an opinion or otherwise comment on matters of public interest ." (Emphasis added.) Miles v. Perry, supra, 11 Conn.App. 595; Milkovich v. Lorain Journal Co. 497 U.S. 1, 13, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1991) (" The principle of 'fair comment' afforded legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon a . . . statement of fact." [Internal quotation marks omitted.]). The United States Supreme Court has concluded that " a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations . . . where a media defendant is involved." Milkovich v. Lorain Journal Co., supra, 19-20; see Gleason v. Smolinski, supra, 319 Conn. 444 (applying standard to Connecticut). This is because " the bounds of the common-law fair comment privilege largely accord with first amendment protections for opinion." Gleason, supra, 319 Conn. 435 n.34. Stated another way, " [t]he constitution does not protect opinions . . . which invade the legitimate expectations of privacy of the person about whom the opinion was stated." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 118 n.9, 448 A.2d 1317 (1982). The fair comment privilege applies, and an opinion is therefore protected, when speech involves a matter of public concern.
Gartner argues in its memoranda that the statements in the Magic Quadrant are protected opinions. In support of this argument, Gartner cites to cases that involve a public figure or a matter of public concern; e.g., Milkovich v. Lorain Journal Co., supra, 19-20; Philadelphia Newspapers, Inc. v. Hepps, supra, 475 U.S. 775 (" a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation"); Mr. Chow of New York v. Ste. Jour Azur, S.A., 759 F.2d 219, 230 (2d Cir. 1985) (plaintiff concedes that it is a public figure); but fails to cite any authority that opinions not involving public figures or matters of public concern warrant constitutional protection. Gartner states in its supplemental memorandum, at 17: " Once the Court concludes, per Gleason, that Gartner's alleged statements involve matters of public concern, it must strike the Revised Complaint to the extent the statements lack actionable, factual content that is susceptible to proof or disproof."
Gartner argues only that its statements are constitutionally protected and does not argue that these statements are protected opinions under any common-law privilege. Indeed, the " distinction [between a factual assertion and opinion] may be somewhat nebulous . . . The 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." (Internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111-12, 448 A.2d 1317 (1982). Here, the court finds that NetScout has alleged particular statements that Gartner made, specifically within the cautions section, and has alleged how these statements can be proven false. See Revised Complaint, ¶ ¶ 77, 80, 81, 108, 100, 119, 121, 123, 131, and 136.
Moreover, courts consistently have denied a motion to strike when it was not clear from the pleadings if a statement conclusively could be considered an opinion. E.g., Harris v. Kupersmith, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-6000995-S (August 31, 2009, Adams, J.) (denying motion to strike defamation count because " the plaintiff's allegation that [the defendant] called him an 'extortionist' cannot necessarily be considered a pure opinion statement"); Shea v. Waterbury, Superior Court, judicial district of New Britain, Docket No. CV-08-5007926-S (February 20, 2009, Tanzer, J.) (denying motion to strike defamation count because " it is not apparent from the face of the complaint the context in which the statements were made and whether the statements made by the defendants were based on facts that were stated or known thereby transforming them into pure opinion statements."). The fact finder must determine whether a statement is false. Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 229, 837 A.2d 759 (2004).
At this stage in the proceedings, Gartner has not met its burden of showing that NetScout is a public figure, that the speech at issue is a matter of public concern, or that the statements in the Magic Quadrant are protected opinions. Accordingly, the motion to strike the defamation count is denied.
The court acknowledges Gartner's reliance on a previous decision by a California federal court in which it was a defendant and the subsequent appeal, where the court dismissed the plaintiff's defamation claims on first amendment grounds. ZL Technologies, Inc. v. Gartner, Inc., 709 F.Supp.2d 789 (N.D.Cal. 2010), aff'd, 433 Fed.Appx. 547 (9th Cir. 2011), cert. denied, 132 S.Ct. 455, 181 L.Ed.2d 295 (2011). While the court notes that the plaintiff in that case made at least some allegations in its defamation claim similar to those of NetScout, it is not clear if the case involved comments similar to those at issue here. In any event, the decision has no precedential value on this court; 9th Cir. R. 36-3 (" Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion."); and this court is concerned only with NetScout's complaint in this action.
II. CUTPA
Our Supreme Court has described the elements of a cause of action under CUTPA as follows:
[General Statutes § ]42-110b(a) 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. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act om practice . . . (Citation omitted; internal quotation marks omitted.)Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008).
Gartner's primary argument is that NetScout's CUTPA claim " piggybacks" the defamation claim, meaning that NetScout's damages arise only from the defamation claim. At the outset, the court notes that, for the reasons set forth above, it has ruled that the defamation claim withstands the motion to strike, and this argument is consequently moot. Further, the court does not agree with the " piggyback" contention because the CUTPA count challenges the " pay-to-play" model that led to the ratings, not the rating themselves. In State v. Moody's Corp., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-10-6008836-S, *7 (May 10, 2012, Bright, J.) , the court found similar allegations relating to a " pay-to-play" model sufficient to state a CUTPA claim, stating " The State is not challenging the substance of Moody's ratings. Instead, it claims that Moody's statements about its independence and objectivity and the policies and procedures it claims to follow to protect those qualities are demonstrably false."
Gartner additionally argues that NetScout has not pleaded causation in its CUTPA claim with sufficient particularity to constitute an unfair or deceptive trade practice. It claims that the revised complaint merely makes disparate allegations that NetScout did not pay Gartner, and that NetScout was not ranked as a leader in the Magic Quadrant, without a sufficient allegation of proximate cause, or adequate suggestion of a quid pro quo scheme.
In making the necessary inferences, the court finds to the contrary and that NetScout has sufficiently pleaded facts showing that it has been damaged by Gartner's " pay-to-play" scheme. In its revised complaint, NetScout describes Gartner's significant influence in consumers' decision-making process. (¶ ¶ 39, 41.) The complaint states that Gartner has a model in which it leverages its influence " to pressure IT vendors that are the subject of that research into purchasing additional services from Gartner, " i.e., the " pay-to-play" model. (¶ 48). The allegations continue that NetScout's competitors that spend a significant amount of money on Gartner's " consulting" services have been placed in the " leaders" quadrant. (¶ ¶ 111, 112.) This is so despite the fact that NetScout's competitors utilize the same technology, or otherwise have similar problems. (¶ 134.) Yet, unlike NetScout, this was not mentioned as a " caution" for the competitors who " pay-to-play." (¶ 134.) As a result, NetScout alleges adequate facts establishing that it has been damaged and has suffered an ascertainable loss from Gartner's unfair conduct. (¶ 148.)
Contrary to Gartner's argument that these allegations show only that NetScout's damages stem from its ranking, and not from Gartner's business model, NetScout specifically alleges that a Gartner analyst told NetScout's president and chief executive officer that it " is not going anywhere because it does not spend enough on marketing, " and that the damages stem from NetScout's failure to pay Gartner. (¶ ¶ 114, 143.) The court does not dispute Gartner's final contention that there may be alternative reasons explaining why Gartner placed NetScout in the " challenger" quadrant, but cannot speculate thereupon because the court must accept the allegations in the revised complaint as true on a motion to strike. See State v. Moody's, supra (" While the defendants' argument [as to other justification for their ratings] may ultimately have merit, this is simply not the procedural stage at which it should be made"). NetScout has therefore sufficiently alleged that it has suffered ascertainable loss because it failed to comply with Gartner's unfair business practice of a " pay-to-play" arrangement. As a result, the motion to strike the CUTPA count is denied.
As more fully discussed above, Gartner's motion to strike the revised complaint is denied in its entirety because it has failed to show that NetScout is a public figure, that the NPMD Magic Quadrant rating involves a matter of public concern, that it constitutes protected opinion, or that the CUTPA count is entirely derivative of the allegedly defamatory speech.