NETSCOUT SYSTEMS, INC.
January 14, 2019
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
from the Superior Court, Judicial District of
Stamford-Norwalk, Charles T. Lee, J.
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).
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).
M. Seery, Wethersfield, and Eugene Volokh, pro hac vice,
filed a brief for the Reporters Committee for Freedom of the
Press as amicus curiae.
M. DelMonico, New Haven and Proloy K. Das, Hartford, filed a
brief for the Connecticut Business and Industry Association
as amicus curiae.
C. J., and Palmer, McDonald, Mullins, Kahn and Ecker, Js.
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.
trial court agreed with the defendant. The court concluded
that the defendants 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
its pay to play allegation due to its own expert witness
inability to conclude that the defendants 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.
affirm the trial courts judgment on the alternative ground
that all of the defendants statements regarding the
plaintiff were nonactionable expressions of opinion.
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
defendant, a Delaware corporation with its principal place of
business in the city of Stamford, describes itself as "
the worlds leading information technology research and
advisory company. " Among the defendants 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."
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. 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 analysts 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 plaintiffs
pay to play allegations rest substantially on the claim that
the defendants vendor ratings were influenced by the
vendors willingness to use and pay for the defendants
early 2013, Julie Dempster, an account executive with the
defendant assigned to the plaintiffs account, and Jonah
Kowall, the defendants 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 dont
understand why we dont 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 Im not quite
understanding the relationship at all. I normally go out of
my way to make things happen, and thats 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 ...