The opinion of the court was delivered by: SIFTON
MEMORANDUM DECISION AND ORDER
This case is now before the Court on defendant's motion for summary judgment or judgment on the pleadings. The three plaintiffs in this action are also plaintiffs in personal injury actions currently pending in state courts in this district. The defendant Aetna Life & Casualty Co. ("Aetna") is an insurance company. Plaintiffs' complaint arises from two advertisements which defendant caused to be published in Newsweek and New York Magazine. The thrust of both advertisements is that the current system for handling tort claims results in excessive jury awards which increase insurance rates.
The first advertisement pictures a judge reading from a document which states, "When awarding damages in liability cases, the jury is cautioned to be fair and bear in mind that money does not grow on trees. It must be paid through insurance premiums from uninvolved parties, such as yourselves." The picture has a caption which reads in large letters, "Too bad judges can't read this to a jury." The rest of this advertisement discusses two court cases which Aetna believes resulted in excessive verdicts.
The second advertisement pictures a game show announcer with the caption, "And now the big winners in today's lawsuits." The text describes the recent increase in verdicts of over $ 1 million. Both ads end with the line "Aetna wants insurance to be affordable."
Plaintiffs seek to enjoin defendant from running these and similar advertisements. The complaint alleges that they are part of "a program calculated to tamper with juries in their deliberative process."
Plaintiffs commenced this action on February 9, 1978 in the Supreme Court of the State of New York, Queens County, against Aetna, New York Magazine and Newsweek. The action was removed to this Court by Aetna which contended, Inter alia, that the two magazines were "sham defendants" and that, therefore, complete diversity existed. By Order of this Court dated March 29, 1978, the action was remanded for lack of complete diversity.
Upon remand plaintiffs moved for a preliminary injunction, and each defendant cross-moved to dismiss the complaint. In a decision dated July 5, 1978, reported at 96 Misc.2d 545, 409 N.Y.S.2d 473, the New York Supreme Court (Graci, J.) granted the motions of New York Magazine and Newsweek to dismiss, denied Aetna's motion to dismiss, and also denied plaintiffs' motion for a preliminary injunction.
In his decision Justice Graci discussed two state law provisions, General Business Law § 350-a, dealing with misleading advertising, and Penal Law § 215.25, dealing with jury tampering. Justice Graci did not find that plaintiffs have an implied right of action based on either of these provisions, but rather found that they have an equitable cause of action for injunction as a result of the fact that they may be injured by defendant's actions and have no adequate remedy at law. 409 N.Y.S.2d at 482.
Following the state court decision plaintiffs consented to an order severing their claims against Aetna from their claims against the magazines. Because complete diversity then existed on plaintiffs' claims against Aetna, the action was, once again, removed pursuant to 28 U.S.C. §§ 1441 and 1446(b). Plaintiffs again moved to remand, and this motion was denied by this Court in an oral opinion on December 15, 1978. The action is now before this Court on defendant's motion for judgment on the pleadings, or in the alternative, summary judgment dismissing the complaint.
As an alternative to their motion to remand, plaintiffs argued that this Court should abstain from deciding the state law issues. This Court finds that ...