## Facts

- AAUW and its Legal Advocacy Fund, nonprofit organizations supporting women and girls, operated a nationwide referral service for women in higher education considering or bringing gender-discrimination claims.
- AAUW compiled and distributed a directory listing roughly 275 attorneys and other professionals, providing contact information and brief descriptions.
- The directory and cover letter did not explain how entries were compiled; some entries suggested reliance on surveys or submitted statements.
- Leonard N. Flamm, a New York attorney handling employment and discrimination matters, was listed with the directory’s only negative description, based on at least one plaintiff’s remark.
- Flamm’s entry described him as an “ambulance chaser” interested only in “slam dunk cases.”
- Flamm alleged the description falsely implied unethical client solicitation and an unwillingness to take difficult but meritorious cases.
- Flamm sued under New York law for libel per se, seeking compensatory and punitive damages.

## Issues

1. Whether the directory’s description of Flamm as an “ambulance chaser” interested only in “slam dunk cases” was constitutionally protected opinion.
2. Whether, in context, the description could reasonably be understood to imply a provably false statement of fact—unethical solicitation—supporting a defamation claim.
3. Whether dismissal under Rule 12(b)(6) was proper where the statement appeared in an informational professional directory distributed to third parties.

## Decision

- The Second Circuit vacated the district court’s Rule 12(b)(6) dismissal and remanded.
- The court held the directory addressed a matter of public concern, triggering constitutional limits requiring that actionable defamation on such matters be provably false rather than pure opinion.
- The court concluded the “ambulance chaser” characterization, in this directory context, could reasonably be read to imply unethical solicitation of clients, a factual assertion capable of being proven true or false.
- The court rejected a rigid media versus non-media distinction; constitutional protection turned on whether the statement implied a provably false factual assertion, considering content, form, and context.
- Because the complaint plausibly alleged a defamatory statement of fact (not merely nonactionable opinion), dismissal at the pleading stage was inappropriate.

## Legal Principles

- For speech on a matter of public concern, a defamation plaintiff must show the challenged statement is capable of being proven false; pure opinion is not actionable.
- Whether language is actionable depends on content, form, and context, including whether the presentation invites readers to treat the statement as factual information.
- Pejorative or figurative terms may be actionable when, in context, they imply specific misconduct (such as unethical professional behavior) rather than subjective evaluation.
- Under New York defamation law, a plaintiff must allege a written defamatory statement of fact about the plaintiff, publication to a third party, fault, and special damages or defamation per se.

## Conclusion

The court held that describing an attorney as an “ambulance chaser” in an informational referral directory could be understood as implying unethical solicitation, a provably false factual charge, so the defamation claim could proceed beyond the pleading stage.


Flamm v. Am. Ass'n of Univ. Women, 201 F.3d 144 (2d Cir. 2000)