## Facts

- Dun & Bradstreet, a commercial credit-reporting agency, issued a credit report stating that Greenmoss Builders had filed a voluntary bankruptcy petition.
- The bankruptcy statement was false; Greenmoss was financially sound and had not filed for bankruptcy.
- The error originated from Dun & Bradstreet’s internal processing of bankruptcy information.
- Dun & Bradstreet distributed the report to five paying subscribers under contractual limits restricting further dissemination.
- Greenmoss learned of the report during a meeting with its bank while seeking additional financing; the bank refused further credit pending resolution and later terminated Greenmoss’s line of credit.
- Greenmoss demanded a correction and disclosure of the subscribers who received the report; Dun & Bradstreet issued a corrective notice to the same subscribers but refused to identify them.
- Greenmoss sued for defamation seeking compensatory and punitive damages.
- A jury awarded $50,000 compensatory damages and $300,000 punitive damages; the trial judge did not require a finding of “actual malice” as a prerequisite to punitive or presumed damages.
- The trial court denied judgment notwithstanding the verdict but granted a new trial, concluding its instructions were erroneous under First Amendment limits described in *Gertz*; certified questions were reviewed by the Vermont Supreme Court.

## Issues

1. Whether First Amendment limits associated with *Gertz* restrict presumed or punitive damages in a defamation suit by a private plaintiff against a credit-reporting agency.
2. Whether a confidential credit report about a private company’s creditworthiness is speech on a matter of public concern.
3. Whether the trial court properly ordered a new trial based on the absence of an “actual malice” instruction for punitive damages.

## Decision

- The Vermont Supreme Court reversed the order granting a new trial and reinstated the jury verdict.
- The court held the report was a private, confidential communication to a narrow commercial audience and did not involve a matter of public concern.
- The court concluded that *Gertz* did not constitutionally require an “actual malice” instruction for punitive (or presumed) damages in this context.
- Vermont’s common-law defamation remedies, including punitive damages without proof of actual malice, could be applied to the defamatory report.

## Legal Principles

- Speech of purely private concern, communicated confidentially to a limited group, receives less First Amendment protection against state defamation remedies than speech on matters of public concern.
- Where the defamatory communication is not of public concern, a state may permit presumed and punitive damages without requiring proof that the defendant acted with actual malice (knowledge of falsity or reckless disregard for truth).
- The state has a strong interest in protecting business reputation and credit standing against false statements that directly affect private commercial relationships.

## Conclusion

The court treated the false bankruptcy credit report as private-concern speech distributed under confidentiality to a small set of subscribers, and held that First Amendment doctrine did not compel an actual-malice instruction as a prerequisite to punitive or presumed damages; it therefore reversed the new-trial order and reinstated the jury’s compensatory and punitive awards.


Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 461 A.2d 414 (Vt. 1983)