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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

         Procedural History

         Action to recover damages for, inter alia, violations of the Connecticut Unfair Trade Practices Act, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Lee, J., granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed. Affirmed.

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

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

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

          Jennifer M. DelMonico and Proloy K. Das 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.

         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 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 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 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 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 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 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 lot more strategically.'' In an e-mail to Kowall dated July 8, 2013, Dempster wrote that ‘‘[t]he [strategic advisory services] day is so key for us to gain exposure and further licensing and engagements at [the plaintiff]!''

         On July 29, 2013, the defendant publicly announced that it would be publishing a new Magic Quadrant report-that is, the 2014 report-for the network performance monitoring and diagnostics (NPMD) market. By e-mail dated September 2, 2013, the defendant invited the plaintiff to participate in the evaluation process for inclusion in the 2014 report. The defendant included in the e-mail a definition of the NPMD market, the criteria for inclusion in the report, the evaluation criteria, a research and process timeline, and a vendor survey. The plaintiff accepted the invitation and returned the completed survey to the defendant on October 1, 2013.

         On December 2, 2013, Kowall sent an e-mail to his coworkers containing a draft of the Magic Quadrant graphic to be included in the 2014 report, in which the plaintiff was placed in the leaders quadrant. On December 3, 2013, Rebecca Noriega, a senior analyst and public relations manager with the plaintiff, sent an e-mail to Dempster indicating that the plaintiff was not going to participate in the ‘‘strategic advisory services day'' that Dempster had suggested. The next day, Kowall circulated another e-mail containing a revised draft of the Magic Quadrant graphic, in which the plaintiff was placed directly on the line between the leaders quadrant and the challengers quadrant. Kowall noted in the e-mail that he ‘‘still think[s] [that one of the other vendors placed in the challengers quadrant] and [the plaintiff] should technically be leaders here, or at least on the line (as [the plaintiff] is)'' and observed that the plaintiff and the other vendor may be ranked ‘‘too low'' in their ability to execute. On December 5, 2013, Kowall circulated yet another e-mail with a second revised draft of the Magic Quadrant graphic. Kowall indicated that he had ‘‘tweaked some of the weightings to give us better control.'' As a result, the plaintiff was placed higher on the vertical ability to execute axis but farther to the left on the horizontal completeness of vision axis, thereby situating the plaintiff deeper into the challengers quadrant. During the defendant's internal peer review of the draft 2014 report, several reviewers questioned why the plaintiff was placed in the challengers quadrant instead of in the leaders quadrant.

         On January 9, 2014, the defendant provided the plaintiff with a draft of the 2014 report, in which the plaintiff was placed in the challengers quadrant of the Magic Quadrant graphic. The draft 2014 report also contained narrative evaluations of the plaintiff's ‘‘[s]trengths'' and three ‘‘[c]autions'' concerning the plaintiff. On January 14, 2014, Noriega and the plaintiff's vice president of marketing, Steven Shalita, participated in a conference call with Dempster and two other employees of the defendant, Vivek Bhalla and Colin Fletcher. Shalita indicated that the plaintiff was ‘‘struggling with the assessment and some of the language'' the draft 2014 report contained. Bhalla and Fletcher attempted to explain the reasons for the plaintiff's placement and requested written feedback from the plaintiff. On January 17, 2014, Shalita sent an e-mail to Kowall, Fletcher, Bhalla and Michele Severance, another employee of the defendant, attaching a response to the draft 2014 report and explaining in detail why the plaintiff believed that it had been ranked too low on its completeness of vision. In an e-mail to Shalita dated January 20, 2014, Kowall indicated that the defendant needed ‘‘specific changes to the text [of the draft 2014 report] BEFORE the call today''; (emphasis omitted); which would be the last opportunity to discuss the plaintiff's positioning in the Magic Quadrant graphic and the report's narrative providing certain cautions concerning the plaintiff. The plaintiff did not suggest any specific changes to the draft report, and the conference call never took place.

         On January 22, 2014, the plaintiff's president and chief executive officer, Anil Singhal, sent a letter to the defendant's chief executive officer, Eugene A. Hall, in which he wrote that he did not find it ‘‘amusing that [the defendant] had the temerity to place [the plaintiff] in the ‘[c]hallengers' quadrant . . . .'' Singhal also indicated that, if the defendant published the 2014 report, he would ‘‘vigorously contest [that] action through whatever means available.'' Over the next several days, Singhal had a number of telephone conversations with Nancy Erskine, the defendant's ombudsman, in which he reiterated that the plaintiff believed that the challengers ranking was unfair and discriminatory and that the plaintiff wanted to be designated as the leading vendor in the NPMD market or, in the alternative, removed entirely from the 2014 report. Singhal also indicated that, if the defendant refused to redesignate the plaintiff as a leader or to remove it from the report, the plaintiff would take legal action.

         On March 6, 2014, the defendant published the final 2014 report. The plaintiff was placed in the challengers quadrant. The report defined ‘‘[c]hallengers'' as ‘‘those with high market reach and large deployments. Once leaders in the network performance monitoring market, they are currently struggling to deal with new technical demands and rising expectations. These established NPMD vendors bring a substantial installed base, but also architectures, feature sets and pricing structures that require modernization (often in progress) to better compete with those in the [l]eaders quadrant.'' The report also provided the following three ‘‘[c]autions'' regarding the plaintiff: (1) ‘‘[the plaintiff] has a limited ability to expand beyond its network management heritage, which would be the next logical step (for example, into [application performance monitoring] or [information technology] operations analytics)''; (2) ‘‘[o]ffering only a hardware-based deployment model limits [the plaintiff's] ability to address growing software and [software as a service] solution demand''; and (3) ‘‘[the plaintiff] is perceived as a conservative stalwart in the NPMD space, and lacks the reach and mind share that many smaller competitors have.'' In separate marketing publications directed at purchasers of the defendant's research products, the defendant represented that the opinions expressed in its reports were ‘‘impartial, '' ‘‘independent, '' ‘‘objectiv[e], '' and ‘‘unbiased.''

         The 2014 report was made available to 40, 000 subscribers to the defendant's research services, more than 4000 of whom viewed the report. Vendors purchased online reprints of the report that were ...


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