Christopher J. Alf, Appellant,v.The Buffalo News, Inc., Respondent.BriefN.Y.June 20, 2013 7159106.1 CARTER LEDYARD & MILBURN LLP Counselors at Law 2 Wall Street New York, NY 10005-2072 • Tel (212) 732-3200 Fax (212) 732-3232 570 Lexington Avenue New York, NY 10022-6856 (212) 371-2720 February 20, 2013 Andrew W. Klein, Esq. Clerk of the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Alf v. Buffalo News, Inc., App. Div. Docket CA12- 560, Erie County Supreme Court Index I-2008-11720 Dear Mr. Klein: This firm represents plaintiff-appellant, Christopher J. Alf, in the above referenced appeal. We respectfully submit this letter brief pursuant to 22 NYCRR Rule 500.11(c). For the reasons set forth herein, Mr. Alf objects to the Court’s decision to review the matter pursuant to 22 NYCRR 500.11(c). After full briefing and oral argument, the Decision and Order of the Appellate Division, Fourth Department, should be reversed in all respects. I. FACTUAL BACKGROUND A full recitation of the facts is presented in the accompanying briefs. In short, Mr. Alf owns an air freight forwarding company, National Air Cargo (“NAC”), which participates in the transport of military materiel for the U.S. Department of Defense. On October 25, 2007, NAC pleaded guilty in federal district court to an Information which alleged that NAC made a single false statement in response to an audit request on a proof of delivery for a shipment of government cargo. At the same time, NAC entered into a global settlement with the U.S. Attorney to resolve a related civil forfeiture proceeding and a related qui tam action. All of these proceedings were an outgrowth of a six-year old dispute with DOD about the proper interpretation of carriage regulations involving charges for domestic shipments. John J. Walsh Senior Counsel • Direct Dial: 212-238-8849 E-mail: walsh@clm.com -2- 7159106.1 Despite the narrow scope of the admission made in NAC’s Plea Agreement, the defendant (the “News”) published a series of defamatory articles (the “Articles”) asserting that Mr. Alf, individually and in his capacity as chief executive and sole owner of NAC, admitted to repeatedly and fraudulently overcharging the government by millions of dollars over a period of six years. The News also falsely attributed quotes to Mr. Alf, including reports that he had stated that he had “stopped cheating” the government in 2005. The Articles focused on Mr. Alf’s political contributions and stated that, because of those contributions, he had been afforded a different standard of justice, thereby avoiding federal prison despite his war profiteering. The News published these statements despite the fact that Mr. Alf was not charged with any crimes and did not admit to any crimes. The accusations leveled against Mr. Alf by the News have no basis in fact and are defamatory. Mr. Alf commenced this action for defamation in 2008. Prior to any discovery, the News moved for summary judgment pursuant to Civil Rights Law § 74, which privileges “fair and true” reports of judicial proceedings. The trial court granted the News’ motion for summary judgment and the Fourth Department affirmed in a 3-2 decision. Mr. Alf now appeals. II. OBJECTION TO SECTION 500.11 REVIEW We respectfully submit that Section 500.11 review is not appropriate because the Supreme Court decision and the Appellate Division decision affirming it substantially expand the scope of the Civil Rights Law § 74 defamation defense; in addition, the Appellate Division’s analysis of the “of and concerning” element of a defamation claim misconstrues the requirements of that element and is contrary to established caselaw. These issues are matters of statewide importance. The decisions of the lower courts, taken together, have expanded the scope of the qualified § 74 protection of “fair and true” reports of judicial proceedings to virtually an absolute defense for any reports concerning judicial proceedings. The Appellate Division majority’s “of and concerning” analysis also departs from precedent to create a new rule of law for that element of libel which was not even addressed by the trial court. We respectfully submit that both of these issues require full briefing and oral argument prior to a decision which will become the State standard for defamation suits arising from false reports of judicial proceedings. The trial court found that “a fair reading of the articles leads the reader to inaccurately conclude that NAC and Mr. Alf admitted to cheating the government -3- 7159106.1 over a period of years.” (R.14)1 That finding alone precludes the application of a § 74 defense because Mr. Alf never admitted any cheating and NAC pled guilty only to making a single false statement. (R.13) Nevertheless, the trial court granted summary judgment based on § 74 and explained that while the articles “inaccurately relied upon the terms of [NAC’s] plea agreement,” it would be “unreasonable” to hold a reporter and his editor to a standard requiring “knowledge of specific terms used during a legal proceeding.” (R.15) In essence, without any discovery addressing what the News’ veteran federal court reporter or his editors actually knew about the judicial proceeding, the trial court applied the § 74 defense based on an assumption that the News’ reporter misunderstood what happened in court, a fact that, arguably, might be relevant only to the issue of fault. Prior to this decision, fault was an element of defamation wholly unrelated to the statutory defense for objectively “fair and true” reports. The Appellate Division majority affirmed the Supreme Court’s decision as “proper[],” without modification of any of the lower court’s findings of substantial inaccuracies, thus lending the weight of Appellate Division imprimatur to the lower court decision turning the longstanding “fair and true” analysis on its head. But the Appellate Division majority also added additional, equally flawed reasons for dismissing the complaint. First, the Appellate Division majority held that the majority of the pleaded statements, “those that referenced NAC only, and not plaintiff” were not “of and concerning” Mr. Alf. As discussed below, that holding is a substantial departure from long-standing precedent and easily subject to abuse. With this new rule of law, the Appellate Division majority has substantially narrowed the field of actionable defamation based on a few pages of argument by the News in its answering brief2 and only briefly addressed in the reply3 because the “of and concerning” element was not addressed in the lower court’s decision. Second, the Appellate Division majority held that a statement which “directly asserted that plaintiff cheated the government” was not actionable because “when read as a whole” the series of articles would lead the average reader to conclude that NAC, not the plaintiff, had cheated the government. This analysis ignores Alf’s pleading4 and the uncontradicted facts in the record that must, at this 1 (R.) denotes reference to the Record on Appeal. 2 See Brief for Defendant-Respondent, p. 49-51. 3 See Reply Brief for Plaintiff-Appellant, p. 28-29. 4 See R.28-29 (“the Defamatory Articles, taken as a whole were at the respective times of publication and republication, and continue to be, false and defamatory in respect of Alf [and] were understood by those reading them to mean… that Alf was criminally culpable for NAC’s alleged conduct”). -4- 7159106.1 stage, be viewed in a light most favorable to the nonmoving party. See Ortiz v. Varsity Holdings LLC, 18 N.Y.3d 335, 339 (2011). The Appellate Division majority’s new rule provides incentive for the news media to publish false and incendiary reports of judicial proceedings so long as some of its other reporting is more accurate. Prior to the Appellate Division decision, other reports could only mitigate damages from false reports. Now, if not reversed this decision means that defamatory reports are not actionable as long as some other reports are accurate. Finally, the Appellate Division majority held that Civil Rights Law § 74 applies to all of the statements, despite its own finding that another portion of the reports falsely and directly asserted that Mr. Alf had cheated the government,5 and despite the trial court’s unmodified findings of fact that the inaccurate reports led readers to falsely conclude that NAC and Mr. Alf admitted to cheating the government over a period of years. (R.14) These issues are of tremendous concern to New York’s defamation jurisprudence and to all citizens of New York, any of whom may now find themselves without a legal remedy after being defamed by false reports of judicial proceedings. III. LEGAL ARGUMENTS POINT 1. CIVIL RIGHTS LAW § 74 DOES NOT APPLY TO THE UNFAIR AND UNTRUE REPORTS PUBLISHED BY THE NEWS Civil Rights Law § 74 is not an absolute privilege and does not apply to all reports of judicial proceedings. Rather, the § 74 statutory defense only prohibits causes of action arising from fair and true reports of judicial proceedings. A report is not “substantially accurate” and, therefore, not “fair and true” if it would have a “different effect” on the mind of the recipient than the actual truth. Dibble v. WROC TV Channel 8, 142 A.D.2d 966, 967 (4th Dep’t 1988); Daniel Goldreyer, Ltd. v. Van De Wetering, 217 A.D.2d 434, 436 (1st Dep’t 1995); see also Glendora v. Gannett Suburban Newspapers, 201 A.D.2d 620, 620 (2d Dep’t 1994) (applying a “substantially accurate” analysis to determine whether a report is “fair and true”). While news reports need not transcribe judicial proceedings with a “lexicographer’s precision,” § 74 does not apply where newspaper articles report allegations not contained in the underlying proceeding. See Holy Spirit Assn. for Unification of World Christianity v. New York Times, 49 N.Y.2d 63 (1979) 5 Alf v. The Buffalo News, Inc., 100 A.D.3d 1487, 1487 (4th Dep’t 2012) (“one statement… directly asserted that plaintiff cheated the government”). -5- 7159106.1 (applying § 74 to news articles concerning intelligence reports because the articles had not “assigned to the intelligence reports allegations not contained in those documents”). In general, § 74 does not afford protection if the statements at issue, considered in their context “suggest more serious conduct than that actually suggested in the official proceeding.” Daniel Goldreyer, Ltd., 217 A.D.2d at 436; Ocean State Seafood v. Capital Newspaper, 112 A.D.2d 662, 666 (3d Dep’t 1985); see also Calvin Klein Trademark Trust v. Wachner, 129 F.Supp. 2d 248 (S.D.N.Y. 2009). A very brief discussion and comparison of these cases illuminates the boundaries established for application of the § 74 defense. In Calvin Klein, licensors of trademarks for clothing brought a lawsuit against the licensee for contractual breaches and, thereafter, Calvin Klein’s representatives publicly stated that the quality of its licensee’s work was “equivalent” to “counterfeiting.” Calvin Klein, 129 F.Supp. 2d at 253. A defamation claim ensued and the § 74 defense was denied because a reasonable jury could find that the comments, which suggested a form of fraud and “counterfeiting,” went well beyond anything reasonably suggested by the complaint. Id. In the NAC case, the U.S. Attorney did not charge Mr. Alf with any involvement in the submission of a false statement to the government or anything else (R.646) but the News reported that Mr. Alf was “involved in the fraud” (R.28). While NAC admitted to submitting a false statement on March 19, 2001 (R.289), the News reported that NAC had admitted to six years of criminal cheating and theft (R.22). As in Calvin Klein, a reasonable jury in this case could easily find that the statements about Mr. Alf and NAC suggested much more serious conduct than that actually charged and admitted in the official proceeding. Likewise, in Ocean State Seafood, the owners of a seafood market sued a newspaper for reports that they had sold contaminated clams which led to several severe illnesses. Ocean State, 112 A.D.2d at 663. The article accused the owners of greed and impropriety in selling contaminated clams and suggested that they had sold “illegal clams” out of season. Id. The newspaper raised a § 74 defense based on a $25 fine the seafood market had agreed to pay as a civil compromise for a clam bushel labeling error. The court rejected the § 74 defense because the report of the proceeding was combined with other facts and opinions to imply wrongdoing more serious than a $25 labeling error. Id. at 664. As in Ocean State Seafood, NAC admitted to a minor offense as an element of a compromised settlement and Mr. Alf admitted nothing at all. As in Ocean State Seafood, the News reported impropriety far exceeding the scope of the judicial proceeding and attributed any ill-effects to the company owner’s greed. (R.28) -6- 7159106.1 Finally, in Goldreyer, a painting restorer sued The Wall Street Journal for its false reports of an official proceeding which found that the plaintiff restorer did not use the same oil paints as those used in the original paintings. Goldreyer, 217 A.D.2d at 436-37. The court denied the § 74 defense because The Wall Street Journal described the restorer’s work as using “house paint” and “roller brushes,” suggesting far more serious conduct than that suggested in the official proceeding. Id. Like The Wall Street Journal, the News’ reports were related to the judicial proceeding but wildly inflated the scope – “National Air Cargo admitted that it overbilled the government by millions of dollars for military shipments in the years 1999-2005” (R.25) – and the import – “none of the officers involved in the fraud committed by National Air Cargo will go to jail” (R.25) – of the underlying proceeding. Accordingly, the § 74 defense cannot apply. In addition to the general rule that reports suggesting more serious conduct than that suggested in the judicial proceeding are not privileged, the lower court decisions should be reversed because they are contrary to existing caselaw even more precisely applicable to the facts in this case and which hold that: (1) false reports of admission of guilt are not “fair and true”; (2) false reports expanding the scope of criminal conduct are not “fair and true”; and, (3) a reporter’s misunderstanding does not render a false report “fair and true.” A. False Reports of Admissions of Guilt Are Not “Fair and True” False reports of a guilty plea or admission “cannot be considered such a trivial defect” that the report can be characterized as a “substantially accurate” account of a judicial proceeding. Fraser v. Park Newspapers of St. Lawrence, Inc., 246 A.D.2d 894, 896 (3d Dep’t 1998). “A report that an individual has been accused of a crime . . . has an entirely different connotation than one announcing that the accused has in fact admitted, pleaded guilty to or been convicted of engaging in such activity.” Id. (emphasis added). While reporting an accusation “leaves open the possibility of a benign explanation . . . the average reader would be less inclined to entertain that thought once informed that the accused had admitted his wrongdoing.” Id. Even where a defendant can demonstrate that plaintiff engaged in the accused of conduct, “that would not tend to prove the truth of the charged libel, namely, that [the libel plaintiff] had pleaded guilty to a crime.” Fraser v. Park Newspapers of St. Lawrence, Inc., 257 A.D.2d 961, 962 (3d Dep’t 1999). In Fraser, the defendant’s newspaper published a report which stated that the plaintiff had pleaded guilty to public lewdness, however, no such guilty plea was ever entered by the plaintiff. Just as Fraser did not admit to public lewdness, -7- 7159106.1 NAC did not admit to “cheating the government over a period of years” and Alf did not admit anything. The News’ false reports that NAC “admitted that it overbilled the government by millions of dollars for military shipments in the years 1999-2005” (R.444) and that NAC and Alf each stated that they “stopped cheating” the government in 2005 (R.442, 444) are contrary to the facts in the record. The lower court found that “it is clear from a review of the entire record that Mr. Alf did not admit to cheating the government over a period of years” and that “a fair reading of the articles leads the reader to inaccurately conclude that NAC and Mr. Alf admitted to cheating the government over a period of years.” (R. 13–15) Under Fraser, such false reports of admissions create a false impression in the minds of readers and cannot be “fair and true.” B. False Reports Expanding the Scope of Criminal Conduct Are Not “Fair and True” Section 74 protection is also unavailable when a report falsely expands the scope of charges in a judicial proceeding. Dibble v. WROC TV Channel 8, 142 A.D.2d 966 (4th Dep’t 1988). The lower court ignored this controlling precedent in reaching its decision and, remarkably, the Appellate Division majority did not even reference its own highly relevant precedent.6 In Dibble, the plaintiff was charged with one count of grand larceny in the second degree but the local television news affiliate reported that Dibble had been “indicted on charges of fraud, embezzlement and securities violations” and “accused of misuse of clients’ escrow accounts and stock fraud.” The court held that the defendant’s § 74 defense must fail as a matter of law because a report that expands the scope of criminal charges is not substantially accurate. Dibble, 142 A.D.2d at 966-67. Using the workable test of “whether the libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced,” the court held that the report was not substantially accurate and that the defendants failed to act as “the agent of the public, reporting only that which others could hear for themselves were they to attend the proceedings.” Id. at 968, quoting Hogan v. Herald Co., 84 A.D.2d 470, 477-78 (4th Dep’t), aff’d 58 N.Y.2d 630 (1982). The News failed to meet the standard of accuracy annunciated in Dibble. NAC was charged with a single instance of wrongdoing, but the Article published by the News led readers to believe that NAC had been charged by the U.S. Attorney with many more crimes and that Mr. Alf was directly involved and responsible. NAC only admitted to submitting one false statement to the 6 The Appellate Division dissenting opinion cited Dibble and correctly applied its holding. -8- 7159106.1 government and simultaneously entered into a global settlement agreement to resolve all outstanding money disputes with the federal government, most of which involved the details of inconsistent federal regulations.7 And, as previously mentioned, Mr. Alf was not charged with anything. Had a reader of the News attended the October 25, 2007 hearing, he would have heard Mr. Alf’s name only twice, first in reference to the signature on the corporate consent and later in reference to a letter involving the corporation’s ability to satisfy the settlement. (R.209, 213) But after reading the News, as shown by reader comments published in the News, its readers understood, among other defamatory things, that Mr. Alf is a “modern day robber barron [sic]” (R.57) who should “rot in a cancer ward” (R.69). The expansions of the charges against NAC and attribution of criminal culpability for them to Mr. Alf are not “fair and true” and are not privileged under § 74. C. False Reports Based on A Reporter’s Misunderstanding of a Judicial Proceeding Are Not Thereby Deemed “Fair and True” and the Affirmed, Unmodified Supreme Court Decision Expands the Civil Rights Law Section 74 Privilege Beyond the Legislature’s Intent Until the trial court’s decision, whether a reporter or editor understood the reported subject matter prior to publication had been addressed within the fault element of a defamation claim and was not considered in determining whether a report is objectively “fair and true.” In Fraser, 246 A.D.2d at 895 (3d Dep’t 1998), the newspaper reported that Fraser pleaded guilty when, in fact, no such admission had been made. Unlike this case, the reporter in Fraser acknowledged the error and explained his misunderstanding of the legal terms used during the judicial proceeding, specifically, his mistaken understanding that a guilty plea was a necessary precondition to an adjournment in contemplation of dismissal. Despite the reporter’s admitted lack of technical legal knowledge of specific terms used in the judicial proceeding, the court held that § 74 protection was not available because the false statement was not so trivial as to render the article “substantially accurate.” Id. at 896. In this case, the Supreme Court found that the News’ depictions of “relevant conduct” discussed in the sentencing phase following NAC’s plea, as “evidence of additional admissions by NAC and Alf is inaccurate.” (R.14) Yet, that inaccuracy was excused because a reporter should not be required to understand the legal term 7 The briefs and exhibits below indicate that NAC’s position regarding the appropriate interpretation of the applicable regulations was correct. See Brief for Plaintiff-Appellant, p.17- 19. -9- 7159106.1 “relevant conduct” as used in federal sentencing procedures. (R.15) But NAC’s written plea agreement, which the News’ reporter had a copy of in preparing the Articles (R.550), made a very clear distinction between the factual basis for NAC’s guilty plea and the government’s uncontested $4.4 million “estimate” of loss (R.288-89) referenced in the sentencing and settlement phases of the proceeding.8 The federal prosecutor also made it clear that the facts set forth in NAC’s plea agreement applied only to the single instance in the plea, but the government’s investigation covered more, which became “relevant conduct” only for sentencing purposes as it was neither charged nor proven. (R.239) Importantly, prior to publication of the October 26, 2007 article NAC had also explained to the News’ reporter the business rationale – continuation of its ability to be a government contractor – for accepting the plea agreement as part of a costly global settlement of the six-year old dispute. (R.532) Unlike the reporter in Fraser, the News’ reporter has not admitted that he misunderstood NAC’s plea agreement – indeed, his affidavit detailing his long experience reporting on federal court criminal proceedings suggests that he should have fully understood that the colloquy on “relevant conduct” applied only to sentencing and contained no admission whatsoever by NAC or Mr. Alf of criminal conduct beyond that subsumed in the plea itself. (R.549-550) The trial court’s decision, affirmed by the Appellate Division majority, holding that it would be unreasonable to require reporters to understand legal terms used in judicial proceedings, and assuming, without any supporting facts, that the News’ false reports were published because the reporter, and presumably his editor, misunderstood the judicial proceeding, is contrary to precedent and threatens to create a de facto absolute privilege for all reports of judicial proceedings, far exceeding § 74’s intended purpose.9 8 The Assistant U.S. Attorney (“AUSA”) also frankly explained the $4.4 million and how that number was arrived at: AUSA: The dollar amounts are unrelated to the factual basis for a guilty plea. It simply relates to the totality of the settlement, which our position is that is the appropriate number. The Court: Your position is what? AUSA: That this is the appropriate number. This is the number that we’re agreeing to as part of the agreement. R.230-31 (emphasis added). 9 The News primarily relied below on Gurda v. Orange County Pubs. Div. of Ottoway Newspapers, Inc., 56 N.Y.2d 705 (1982), and Becher v. Troy Pub. Co., 183 A.D.2d 230 (1992), both of which have unique facts that render their holdings inapplicable in this case. In Gurda this Court applied § 74 because the newspaper reported “fraud” and the statute at issue in the -10- 7159106.1 POINT 2. THE COMPLAINED OF STATEMENTS ARE “OF AND CONCERNING” MR. ALF The Appellate Division majority created a new bright line rule for “of and concerning” by holding that “the statements referencing NAC only, and not plaintiff, were not ‘of and concerning’ plaintiff.” That holding ignores the critical role of context, is contrary to longstanding precedent and creates an opportunity for prolific abuse. A. The Facts in Carlucci v. Poughkeepsie Newspapers are Readily Distinguished The Appellate Division majority relied on Carlucci v. Poughkeepsie Newspapers, 57 N.Y.2d 883, 885 (1982), in support of its erroneous “of and concerning” holding. In Carlucci, a newspaper falsely reported that the “owner of” a grocery store had been arrested on gambling charges. The corporation which actually owned the store sued for defamation. The Court held that the report was not “of and concerning” the corporation because it was not named in the article and because “a corporation cannot be arrested.” Neither of the criteria applied by the Court in Carlucci apply here. This case is the reverse of Carlucci: Mr. Alf, the owner of the corporation was not only named by the News but was the primary focus of its articles. The News published false statements concerning the details and scope of NAC’s corporate guilty plea while simultaneously reporting that its owner, Mr. Alf, who was not a party to the guilty plea, had avoided jail despite cheating the government, thus attributing criminal responsibility to him. Just as judicial proceeding also used the term “fraud” in its text. The narrow holding in that case was that “as a matter of law, when reporting judicial proceedings, a newspaper cannot be held to a stricter standard in the correct use of technical and legal terms than is the Legislature which drafted the statute themselves.” The facts in Gurda distinguish it from this case. The News did not even mention the term “relevant conduct” which it so inaccurately reported, let alone describe it with statutory terms equivalent to those used in the Federal Sentencing Guidelines. Becher is also clearly distinguishable on the facts. In Becher, the plaintiff had been indicted for making a false sworn statement in connection with a prosecution which included several defendants who were charged with bribery. After the charges were dismissed, the plaintiff brought a defamation claim based on headlines referring to a “Bribery Case” and statements which mischaracterized his indictment by including the plaintiff among those indicted on bribery charges. The Appellate Division, Third Department, held that any ambiguity on the part of the reader would be resolved by reading the full article. In this case, Mr. Alf was not indicted, and NAC was not charged with the years of criminal cheating the News attributed to it. Furthermore, the newspaper in Becher did not falsely report that the plaintiff had admitted to committing the crime. -11- 7159106.1 the corporate plaintiff in Carlucci could not be arrested, the reports concerning NAC’s guilty plea which addressed prison sentences were necessarily “of and concerning” Mr. Alf, because the corporation cannot be sentenced to prison, a fact driven home by the News’ repeated references to a “politically connected” Alf escaping jail time. (R. 37, 41, 42, 48) Carlucci is further distinguished because it involved a single article. A series of defamatory publications, such as those published by the News, must be analyzed in their entirety to determine whether the series is “of and concerning” the plaintiff.10 For example, in Gelencser v. Orange County Publ., Div. of Ottaway Newspapers, 115 A.D.2d 696 (2d Dep’t 1986), the defendant published two articles which did not name the plaintiff. However, a third article named the plaintiff and the Court held that the third publication “established an identifying link” such that all three articles were deemed “of and concerning” the plaintiff. Id. at 696. B. Whether the Articles Are “Of and Concerning” Mr. Alf Is a Question of Fact For a Jury Where there is a question as to whether statements are “of and concerning” a plaintiff, that question of fact should be resolved by a jury. See Gross v. Cantor, 270 N.Y. 93, 96 (1936) (“if the words may by any reasonable application, import a charge against several individuals, under some general description or general name, the plaintiff has a right to go to trial, and it is for the jury to decide, whether the charge has personal application averred by the plaintiff”); Sovik v. Healing Network, 244 A.D.2d 985, 987 (4th Dep’t 1997) (plaintiff not named in the allegedly defamatory letter may maintain an action for libel based on evidence that he is a member of the small group that has been defamed); Grinaldo v. Meusburger, 34 A.D.2d 586, 587 (3d Dep’t 1970) (“it is not necessary that [plaintiff] be mentioned by name in the alleged defamatory statement… [w]hether plaintiff was the person referred to in the statement is a question for the jury to determine”); Brayton v. Crowell-Collier Pub. Co., 205 F.2d 644 (2d Cir. 1953) (article that did not mention the plaintiff but referred to his wholly owned corporation created a jury question whether article was “of and concerning” plaintiff where plaintiff introduced evidence that numerous readers of the article understood it to charge him with the improper conduct); Pisani v. Staten Island Univ. Hosp., 440 F.Supp.2d 168, 173-74 (E.D.N.Y. 2006) (jury question whether 10 See Gross v. New York Times, 82 N.Y.2d 146 (1993) (reversing grant of pre-discovery motion to dismiss a defamation complaint because plaintiff had alleged that his reputation was impaired by “a series of widely read newspaper articles that portrayed him as unethical and corrupt”). -12- 7159106.1 published statement which referred to “executives of the hospital” but did not name plaintiff was “of and concerning” plaintiff). The “of and concerning” requirement is “an issue of fact which the jury alone may decide” unless the statements are incapable of supporting such a jury finding. Pisani v. Staten Island Univ. Hosp., 440 F.Supp.2d 168, 172 (E.D.N.Y. 2006). The Articles and the evidence submitted demonstrating Mr. Alf’s understanding of his reputation, the understanding of readers, and the News’ editorial writers, discussed below, amply demonstrate that the statements are capable of supporting such a finding. C. Undisputed Facts In the Record Establish that Statements About National Air Cargo, Generally and as Reported in the Articles, Were Understood by Reasonable Readers to be “Of and Concerning” Mr. Alf The Amended Complaint alleges that Mr. Alf’s “personal identity and reputation were and are inextricably identified with NAC in the minds of the general public, particularly among those who worked in or utilized the national and international transportation and freight forwarding industries. (R.19) The pleading is supported by Mr. Alf’s affidavit, in which he stated that “[a]s the founder and chairman of NAC, my personal identity and reputation are inextricably identified with NAC in the minds of many people, particularly among those who worked in or utilized the national and international transportation and freight forwarding industries.” (R.705-06) These uncontested facts are the only facts on the record directly addressing whether statements concerning NAC are also statements concerning the plaintiff and sufficient to defeat a motion for summary judgment regarding whether the statements are “of and concerning” Mr. Alf. See Bee Publ. v. Cheektowaga Times, 107 A.D.2d 382 (4th Dep’t 1985) (whether reports about corruption at plaintiff’s corporation were “of and concerning” plaintiff, where he was not named in the report but had filed an affidavit stating that he is widely known as the president of Bee Publishing, is a jury question). The facts alleged in the Amended Complaint and sworn to in Mr. Alf’s affidavit are also supported by reader comments published by the News and others which make it abundantly clear that readers understood the articles to be “of and concerning” Mr. Alf. For example, readers stated: • “Alfs should go to jail… They make political contributions and walk away unscathed from bold-faced thievery.” (R.57) -13- 7159106.1 • “The fact is Alf is a very wealthy person and was caught in a series of criminal acts. . . He is a thief and his company is his co-thief. . . his wicked avarice benefits the unsavory creatures of our world like Ossama bin Laden and Mahmoud Ahmadinejad.” (R. 66-67) • “[S]ixty years ago the officers of Air Cargo would have been charged with sedition as well.” (R. 62) • “Imagine that. Our own war profiteer right here in Western New York. How disgusting.” (R. 72, Robert Harding, Who is Christopher Alf?, The Albany Project, Mar. 2, 2008) (citing exclusively to articles in The Buffalo News). • “It’s clear the Alf’s have no conscience, a problem that exists because of the failure of the nation’s schools and churches to include proper ethical and philosophy in required curriculums.” (R. 64) • “I bet the scum defending the scummy Alf’s would be OUTRAGED if they read about someone getting an extra buck in their welfare check. . . I hope they and theirs rot in a cancer ward.” (R.69) These statements demonstrate an understanding among readers that Mr. Alf was charged with criminal conduct and raise a jury question regarding “of and concerning.” Brayton, 205 F.2d 644 (2d Cir. 1953) (whether article was “of and concerning” plaintiff where plaintiff introduced evidence that numerous readers of the article understood it to charge him with the improper conduct was a jury question). Furthermore, as detailed below, the News reported Mr. Alf and NAC interchangeably, encouraging readers to understand that any statements it published concerning NAC were also “of and concerning” Mr. Alf. On October 26, the News featured an image of Mr. Alf with a caption that stated “Christopher J. Alf and fellow executives at National Air Cargo will serve no jail time.” (R.440) That caption and picture were preludes to the subsequent statements in that and subsequent articles that Mr. Alf was guilty of cheating and defrauding the government. The same article reported that “Air cargo executives will avoid jail but must pay over $28 million in fines.” Thus the News implied that Mr. Alf, rather than NAC, was fined. The article also stated that “Alf did not appear at Thursday’s court proceedings. He was represented by at least five attorneys there… .” But NAC, not Mr. Alf, was represented by these attorneys. In that first article reporting on NAC’s plea agreement, the News equated Mr. Alf to -14- 7159106.1 NAC on at least three occasions, a technique the News continued to use in later reports. (R.440-41) On October 27, the News stated in a headline that a political candidate returned political donations to an “Air Cargo bilker.” According to the News “[t]he issue involves donations from Christopher J. Alf and his wife Lori.” Once again the News reported that Mr. Alf was the individual personally responsible for NAC’s admitted crime, i.e., the “bilker.” The article also states that “[t]he couple also maintains that it stopped cheating the government in 2005.” But the Alfs never made any comments to the News and did not make any statements in court. Only NAC made comments to the News and appeared in court (though the quote and the timeframe are fictions invented by the News). (R.442) The News continued to report uncharged conduct by NAC as the criminal responsibility of Mr. Alf throughout the course of its reporting. On November 1, the News reported that “[u]nder the terms of its corporate plea deal, none of the officers involved in the fraud committed by National Air Cargo will go to jail.” The statement is clearly “of and concerning” Mr. Alf, the only officer mentioned in the articles, and it clearly attributes responsibility to Mr. Alf for both NAC’s admitted crime (an unnamed employee submitting a single false statement to an auditor) and the crimes falsely reported based on “relevant conduct” by stating that Mr. Alf was “involved in the fraud” but avoided jail. (R.443-44) In its November 8 editorial, the News asked why convicted felon John Rigas was imprisoned but not Mr. Alf. The clear implication is that Mr. Alf, like Rigas, former CEO of Adelphia Communications Corp., was a criminal who should have been indicted and convicted on specific fraud charges. But Mr. Alf had not even been charged with any crimes; and NAC only with a single count of submitting a false statement. The editorial went on to equate Mr. Alf to war profiteers before concluding that he had “failed America.” (R.445) The author of the editorial submitted an affidavit explaining that he had relied entirely on the earlier reporting (i.e., the false reporting) of the News as the basis for the editorial (R.560 (¶15)), and thus this publication has no basis in true facts. The March 1 Article featured a photograph of Mr. Alf and stated that Senator Clinton would “return funds from area firm.” The News then ensured readers would equate Mr. Alf’s individual acts with NAC’s admitted crime and the false charges of years of “cheating” the government, with the now familiar refrain, “Alf and other company officials will avoid jail time.” (R.446) This and each of the preceding reports reinforced in reader’s minds that statements of and concerning NAC were also statements of and concerning Mr. Alf. Allowing the -15- 7159106.1 News to now parse individual sentences within the complained of Articles and thus gain dismissal of claims based on any statements that do not explicitly reference Mr. Alf creates a dangerous precedent, contrary to those cited above, and sure to be used as a model by other media organizations. CONCLUSION The issues in this case are of statewide importance and should be decided only after a full briefing and oral argument. Nevertheless, should the Court proceed under 22 NYCRR 500.11, for the reasons set forth herein, as well as those arguments made in Mr. Alf’s briefs to the Appellate Division and not discussed herein, the Appellate Division’s Order should be reversed in all respects, and the § 74 defense should be struck, in accordance with the opinion of the Appellate Division dissent. Sincerely, /s/ John J. Walsh John J. Walsh Michael K. Plumb Carter Ledyard & Milburn LLP 2 Wall Street New York, New York 10005 /s/ Richard T. Sullivan Richard T. Sullivan HARRIS BEACH PLLC 726 Exchange Street Suite 1000 Buffalo, New York 14210 Attorneys for Plaintiff-Appellant JJW: