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Elder v. Tronc Inc.

United States District Court, D. Connecticut

July 2, 2018

JOSEPH S. ELDER, Plaintiff,
v.
TRONC INC., NEXSTAR MEDIA GROUP INC., TRIBUNE BROADCASTING LLC, and TRIBUNE MEDIA COMPANY, Defendants.

          MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS

          WARREN W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE

         The State of Connecticut's Office of Chief Disciplinary Counsel commenced a disciplinary action against attorney Joseph S. Elder on March 2, 2015. The complaint alleged violations of Rule 4.1 and Rule 8.4(3) of the Rules of Professional Conduct arising out of two telephone calls involving Elder that were made during the summer of 2004. On July 28, 2015, the trial court entered a judgment based on disciplinary counsel's presentment complaint, ruling that Elder be suspended from the practice of law for a period of one year. See Disciplinary Counsel v. Elder, 2015 WL 5136008 (Conn. Super. Ct. Jul. 29, 2015).

         On May 2, 2017, the Supreme Court of Connecticut reversed the decision of the trial court and remanded Elder's case with instructions to dismiss the complaint based on a mandatory six-year statutory limitation period which barred the action.

         This is an action by Elder against various media company defendants alleging defamation and invasion of privacy by false light, stemming from defendants' coverage of the trial court's July 28, 2015, judgment. Elder's claims are based on publication of a news story in The Hartford Courant entitled “Attorney Suspended for Impersonating Fellow Lawyer, ” and a news story on Channel 61's fox61.com entitled “Hartford lawyer suspended for impersonating fellow lawyer.” Elder contends that the statements that Elder had “impersonated” a fellow lawyer were false, misleading and defamatory.

         Defendants Tronc, Tribune Broadcasting, and Tribune Media Company have moved to dismiss the claims against them based on plaintiff's failure to allege that defendants published the statements at issue. Defendants have also moved to dismiss based on the fair report privilege described by the Restatement (Second) of Torts § 611, as adopted by Connecticut.

         § 611, Report of Official Proceeding or Public Meeting, provides in relevant part:

The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.
***
d. Official proceedings. The privilege covered in this Section extends to the report of any official proceeding, or any action taken by any officer or agency of the government of the United States, or of any State or of any of its subdivisions. Since the holding of an official hearing or meeting is in itself an official proceeding, the privilege includes the report of any official hearing or meeting, even though no other action is taken. The filing of a report by an officer or agency of the government is an action bringing a reporting of the governmental report within the scope of the privilege.
The privilege is thus applicable to the report of proceedings before any court, whether it is one of general or of special and limited jurisdiction. It is also applicable to the proceedings of an agency of the court, such as a grand jury returning an indictment. It applies also to the report of any other proceedings, judicial in character, which take place before administrative, executive or legislative bodies, such as an extradition hearing before the governor of a State or an impeachment proceeding before a legislative body.
***
f. Accuracy and fairness of report. The rule stated in this Section requires the report to be accurate. It is not necessary that it be exact in every immaterial detail or that it conform to that precision demanded in technical or scientific reporting. It is enough that it conveys to the persons who read it a substantially correct account of the proceedings.
Not only must the report be accurate, but it must be fair. Even a report that is accurate so far as it goes may be so edited and deleted as to misrepresent the proceeding and thus be misleading. Thus, although it is unnecessary that the report be exhaustive and complete, it is necessary that nothing be omitted or misplaced in such a manner as to convey an erroneous impression to those who hear or read it, as for example a report of the discreditable testimony in a judicial proceeding and a failure to publish the exculpatory evidence, or the use of a defamatory headline in a newspaper report, qualification of which is found only in the text of the article. The reporter is not privileged under this Section to make additions of ...

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