## Facts

- A New York law firm represented an automobile dealer in a fee dispute and related litigation against a Massachusetts marketing and public relations firm and its principal.
- After that dispute, the marketing firm published an online “case study” on its website and circulated it by mass email to potential customers describing the dispute and criticizing the dealer’s counsel.
- The publication identified the dealer’s “New York lawyers” as the plaintiff law firm and described their role in the conflict.
- The law firm alleged defendants falsely asserted, among other things, that it encouraged or advised the client not to pay defendants for services already performed.
- The law firm claimed these statements portrayed it as unethical and harmed its professional reputation.
- Defendants contended the statements were substantially true, protected opinion or hyperbole, and in some instances not “of and concerning” the law firm.

## Issues

1. Whether the challenged statements were “of and concerning” the plaintiff law firm and reasonably susceptible of a defamatory meaning under New York law.
2. Whether the challenged statements were nonactionable opinion or actionable factual assertions capable of being proven true or false.
3. Whether the complaint plausibly alleged falsity and harm sufficient to survive dismissal, including whether the alleged statements constituted defamation per se.

## Decision

- The court granted the motion to dismiss in part and denied it in part.
- The court dismissed claims based on statements deemed opinion, hyperbole, insufficiently specific, or not attributable to the plaintiff.
- The court permitted the defamation claim to proceed as to statements asserting that the law firm encouraged its client not to pay for services already rendered.
- The court held those surviving statements were plausibly “of and concerning” the plaintiff, factual in nature, capable of defamatory meaning, and adequately alleged to be false at the pleading stage.

## Legal Principles

- Under New York law, defamation requires pleading: (1) a false statement about the plaintiff, (2) publication to a third party, (3) fault at least amounting to negligence, and (4) special harm or defamation per se.
- A court must determine at the threshold whether the words complained of are reasonably susceptible of a defamatory meaning.
- The “of and concerning” requirement is satisfied when the publication’s content and context would lead those familiar with the plaintiff to understand the plaintiff is the target.
- The fact–opinion distinction turns on whether an average reader would view the statement as conveying verifiable facts or as opinion; statements implying undisclosed defamatory facts may be actionable.
- Accusations that a law firm acted unethically in advising a client regarding payment obligations may constitute defamation per se because they tend to injure the plaintiff in its profession, eliminating the need to plead special damages.
- “Substantial truth” may defeat a defamation claim, but where falsity is plausibly alleged, disputes about the publication’s gist typically are not resolved on a motion to dismiss.

## Conclusion

The court held that while much of defendants’ online narrative was nonactionable opinion or otherwise deficient, specific statements asserting the law firm encouraged a client to avoid paying for services were plausibly factual, targeted at the firm, and professionally damaging enough to proceed as defamation per se.


Bellavia Blatt & Crossett, P.C. v. Kel & Partners LLC, 151 F. Supp. 3d 287 (E.D.N.Y. 2015)