Howard v. Antilla

Opinion

Howard v. Antilla CV-97-543-M 11/17/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert Howard, Plaintiff

v. Civil No. 97-543-M

Susan Antilla, Defendant

O R D E R

Robert Howard is the chairman of the board of Presstek, Inc.

He brings this defamation action, seeking damages for injuries he

claims to have sustained when Susan Antilla, a reporter for The

New York Times, published an article implying that Howard might

really be Howard Finkelstein, "a convicted felon who went to jail

for violations of securities laws, among other things." Susan

Antilla, Is Howard Really Finkelstein? Money Rides on It, N.Y.

Times, October 27, 1994, at D1 (Exhibit A to plaintiff's

memorandum (document no. 47)). The article described "a rumor

[that] was sweeping the [stock] market that the chairman of

Presstek had been concealing an ugly past. The story that made

the rounds: Mr. Howard, founder of Presstek in 1987, was Howard

Finkelstein . . .." Id. The article also described an apparent

scheme orchestrated by short sellers of Presstek stock, designed

to profit from rumors of the Howard-Finkelstein identity issue. Antilla moves the court to hold, as a matter of law, that

Howard is a "limited public figure" for purposes of this suit.

Howard objects.

Discussion

Whether a party qualifies as a public figure is a legal

question, properly resolved by the court. See Rosenblatt v.

Baer, 383 U.S. 75, 88 (1966); Pendleton v. City of Haverhill, 156

F.3d 57, 67-68 (1st Cir. 1998). In Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974), the Supreme Court recognized a distinction

between two types of public figures:

Some [plaintiffs] occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.

Id., at 345. More recently, this court (Devine, S.J.) addressed

the legal concepts of "general purpose public figures" and

"limited public figures," observing that:

The designation "public figure" may rest on two alternative bases. First, 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. Second, persons of lesser fame may nonetheless qualify as limited public figures if they "thrust themselves to the forefront of particular public controversies." Such limited public figures are subject to the "actual malice" standard only for defamation arising out of the public controversy into which they have thrust themselves.

2 Fagin v. Kelly, 978 F.Supp. 420, 426 (D.N.H. 1997) (citations

omitted).

In the wake of the Supreme Court's opinion in Gertz, supra,

the Court of Appeals for the District of Columbia Circuit

summarized the factors that courts should consider when

determining whether a particular person is a general purpose

public figure.

A court must first ask whether the plaintiff is a public figure for all purposes. Gertz, as noted above, held that a plaintiff could be found to be a general public figure only after a clear showing "of general fame or notoriety in the community, and pervasive involvement in the affairs of society. . . ." 418 U.S. at 352. He must have assumed a "role of especial prominence in the affairs of society . . ." Time, Inc. v. Firestone, 424 U.S. 448, 453 (1976). Accord, Wolston v. Reader's Digest Association, 443 U.S. 157, 165 (1979). In other words, a general public figure is a well-known "celebrity," his name a "household word." The public recognizes him and follows his words and deeds, either because it regards his ideas, conduct, or judgment as worthy of its attention or because he actively pursues that consideration.

Waldbaum v. Fairchild Publications, Inc., 627, F.2d 1287, 1294

(D.C. Cir. 1980).

While Howard likely does not gualify as a general purpose

public figure (a position not advanced by defendant), he has

plainly achieved a degree of notoriety relating to his various

corporate pursuits, particularly Presstek, to gualify as a

limited purpose public figure in the context of this proceeding.

See Defendant's memorandum (document no. 41) at 3-18. See also

3 Exhibits 1-47 (attached to defendant's memorandum). As the Court

of Appeals for the Eleventh Circuit has recognized:

The proper standards for determining whether plaintiffs are limited public figures are best set forth in Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980), . . . . Under the Waldbaum analysis, the court must (1) isolate the public controversy, (2) examine the plaintiffs' involvement in the controversy, and (3) determine whether "the alleged defamation [was] germane to the plaintiffs' participation in the controversy." Id., at 1297.

Silvester v. American Broadcasting Companies, Inc., 839 F.2d

1491, 1494 (11th Cir. 1988).

Here, the "public controversy" relates to a familiar and

often discussed public issue — the performance of a publicly

traded company's stock and the various factors (both legal and

illegal) that influence, or can be manipulated to effect, the

market value of that stock. Review of defendant's exhibits - a

two volume set of documents chronicling Howard's well publicized

career, including numerous published articles discussing Howard's

role in Presstek (as well as an SEC investigation into

allegations that he participated in unlawful insider trading

relating to Howtek, one of Howard's other companies1) - there can

1 The record suggests that approximately eight months before Antilla's article was published, the SEC alleged that Howard had communicated non-public information concerning Howtek to a friend, who then purchased Howtek stock. Howard agreed to the entry of final judgment in the SEC action, neither admitting nor denying any wrongdoing. The judgment included a permanent injunction prohibiting him from violating securities laws in the future and directing him to pay a civil fine of approximately $42, 500.

4 be little doubt that Howard qualifies as a central figure in the

described and on-going public controversy. It is equally clear

that the published statements about which he complains relate

directly to his role in Presstek and, more specifically, the open

and public debate concerning the fairly prolonged periods during

which public trading of that company's stock was quite volatile

and the possible influence short traders of the company's stock

had on that volatility.

Conclusion

Based upon the exhibits filed by defendant, and for the

reasons set forth in her legal memorandum, the court concludes

that plaintiff is indeed a limited purpose public figure in the

context of this litigation. Accordingly, defendant's motion for

partial summary judgment on the issue of plaintiff's status as a

limited public figure (document no. 41) is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

November 17, 1999

cc: Charles G. Douglas, III, Esq. Jonathan M. Albano, Esq. William L. Chapman, Esq.