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NetScout Systems, Inc. v. Gartner, Inc.

Supreme Court of Connecticut

January 21, 2020

NETSCOUT SYSTEMS, INC.
v.
GARTNER, INC.

         Argued January 14, 2019

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         Appeal from the Superior Court, Judicial District of Stamford-Norwalk, Charles T. Lee, J.

         Jason D. Frank, pro hac vice, Boston, with whom were Emily E. Renshaw, pro hac vice, Boston, and, on the brief, James A. Budinetz, Hartford, Michael T. Ryan, Stamford, Elizabeth G. Hays, pro hac vice, and Michael D. Blanchard, Hartford, for the appellant (plaintiff).

         Derek L. Shaffer, pro hac vice, Washington, with whom were Andrew M. Zeitlin Stamford, and, on the brief, Diane C. Polletta, Stamford, John J. DiMarco, Washington, Robert L. Wyld, Patrick M. Fahey, Hartford, Michael D. Bonanno, pro hac vice, Kathleen M. Sullivan, pro hac vice, and Robert L. Raskopf, pro hac vice, New York, for the appellee (defendant).

         Michelle M. Seery, Wethersfield, and Eugene Volokh, pro hac vice, filed a brief for the Reporters Committee for Freedom of the Press as amicus curiae.

         Jennifer M. DelMonico, New Haven and Proloy K. Das, Hartford, filed a brief for the Connecticut Business and Industry Association as amicus curiae.

         Robinson, C. J., and Palmer, McDonald, Mullins, Kahn and Ecker, Js.

         OPINION

         ECKER, J.

         [334 Conn. 398] The plaintiff, NetScout Systems, Inc., is in the business of developing and selling information technology products that allow its customers to manage, monitor, diagnose and service their computer networks. The defendant, Gartner, Inc., publishes research reports in which it rates vendors, such as the plaintiff, that sell and service various forms of information technology. The defendant also sells consulting services [334 Conn. 399] to some of the vendors that it rates. In 2014, the defendant issued a research report (2014 report), in which it ranked the plaintiff lower than some of its competitors and made critical comments about the plaintiff. Thereafter, the plaintiff brought this action alleging that the defendant had engaged in a "pay to play" scheme, in which it rewarded vendors that purchased consulting services from the defendant by giving them high ratings in its research reports. The plaintiff claimed that the alleged pay to play scheme constituted a false and deceptive business practice under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and that the 2014 report contained false and defamatory statements about the plaintiff. The defendant, in response, raised a defense premised on the theory that its rankings and commentary were protected speech under the first amendment to the United States constitution.[1]

         The trial court agreed with the defendant. The court concluded that the defendant’s 2014 report was constitutionally protected speech, and the plaintiff, as a limited purpose public figure, was required to present evidence that the defendant had acted with actual malice. The court found that the plaintiff had failed to do so and, accordingly, rendered summary judgment for the defendant with respect to both claims on that ground. The court also determined that the CUTPA claim failed because the plaintiff had not presented evidence to support the factual predicate for

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its pay to play allegation due to its own expert witness’ inability to conclude that the defendant’s ratings were correlated to the dollar volume of consulting services that the [334 Conn. 400] vendors had purchased from the defendant. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

          We affirm the trial court’s judgment on the alternative ground that all of the defendant’s statements regarding the plaintiff were nonactionable expressions of opinion.

          I

          The record, viewed in the light most favorable to the plaintiff, reveals the following relevant facts and procedural history. The plaintiff, a Delaware corporation with its principal place of business in the town of Westford, Massachusetts, is a prominent provider of computer network performance monitoring products and services. Its customers include numerous businesses around the world, including commercial banks, airlines, financial service providers, and telecommunication service providers, as well as governmental agencies and five branches of the United States military. In 2014, the plaintiff had revenues of approximately $400 million.

          The defendant, a Delaware corporation with its principal place of business in the city of Stamford, describes itself as " ‘the world’s leading information technology research and advisory company.’ " Among the defendant’s research publications are its "Magic Quadrant" research reports, which are marketed to buyers of various information technology products to assist them in selecting a vendor. The centerpiece of each report is a graphic rating of vendors called "the Magic Quadrant," presented in the form of a square divided into quadrants. The horizontal axis of the square depicts the vendors’ "Completeness of Vision," and the vertical axis depicts their "Ability to Execute." As illustrated by the graphic, vendors with high ratings for both completeness of vision and ability to execute are placed in the upper [334 Conn. 401] right quadrant and are designated as "Leaders"; those with a high rating for ability to execute and a low rating for completeness of vision are placed in the upper left quadrant and are designated as "Challengers"; those with a high rating for completeness of vision and a low rating for ability to execute are placed in the lower right quadrant and are designated as "Visionaries"; and those with low ratings for both completeness of vision and ability to execute are placed in the lower left quadrant and are designated as "Niche Players."

         In addition to its research activities and associated publications, the defendant provides consulting services, which it calls "Strategic Advisory Services," to some vendors of information technology products.[2] The analysts who market and provide these consulting services also are part of the team that determines the placement of vendors on the Magic Quadrant graphic. An analyst’s job performance is evaluated in part based on the amount of revenue he or she generates, including revenue from the sale of consulting services. The plaintiff’s pay to play allegations rest substantially on the claim that the defendant’s vendor ratings were influenced by the vendors’ willingness to use and pay for the defendant’s consulting services.

          In early 2013, Julie Dempster, an account executive with the defendant assigned to the plaintiff’s account, and Jonah

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Kowall, the defendant’s research vice president for information technology operations management, exchanged a number of e-mails regarding the plaintiff. In an e-mail to Dempster dated January 4, 2013, Kowall wrote, "I don’t understand why we don’t speak to other people at [the plaintiff], nor do I understand why [the plaintiff does not] attend shows, or do any [strategic advisory services]. With [the plaintiff] in lots [334 Conn. 402] of research and potentially a [Magic Quadrant report] in 2013 I’m not quite understanding the relationship at all. I normally go out of my way to make things happen, and that’s not how it should be. [The plaintiff] ha[s] potentially the worst [analyst relations/public relations] and poor[est] marketing out of all the vendors I deal with." In a subsequent e-mail dated April 5, 2013, Kowall wrote that the plaintiff did not "work with us like [its] competitors do ... and [it does not] engage us for [strategic advisory services], which I think could help [it] a ...


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