The opinion of the court was delivered by: SAND
HON. LEONARD B. SAND, U.S.D.J.
Defendants News Group Publications, Inc., Michael Kramer and Eli Jacobs seek a ruling prior to trial that plaintiff Alex Grass is a limited purpose public figure under Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), and that the law of New York State governs plaintiff's libel and right of privacy claims. Defendant Fred M. Alger moves for summary judgment pursuant to Fed.R.Civ.P. 56(b).
The following facts are not in dispute. Lewis Lehrman announced his candidacy for the office of Governor of New York in January, 1982. As a part of his campaign strategy, Lehrman emphasized in speeches and radio and television commercials his responsibility for building Rite Aid, Inc. into the third largest chain of drugstores in the country. Lehrman joined Rite Aid in 1964 and served as its president from 1969 until 1977. He became chairman of its executive committee in 1977. He resigned that post and his position on the Rite Aid board of directors in January, 1982 in order to devote full time to his gubernatorial campaign.
Alex Grass, the plaintiff in this action and Lehrman's former brother-in-law, founded Rite Aid Corporation in 1962 along with several other associates. Rite Aid expanded the activities of a predecessor wholesale grocery business into a specialized retail drugstore chain. Grass has held the position of chief executive officer of Rite Aid from its inception.
Rite Aid and Alex Grass have numerous contacts with New York State. Grass maintains an apartment in New York City. Rite Aid is listed on the New York Stock Exchange. Although headquartered in Pennsylvania, there are 202 Rite Aid drugstores in New York State as compared to 206 stores in Pennsylvania.
The defendants in these actions are News Group Publications, Inc., publishers of New York Magazine and the New York Post, Michael Kramer, a political reporter for New York Magazine, and Fred. M. Alger and Eli Jacobs, both of whom have been associated with Rite Aid in some capacity in the past. New York Magazine and the New York Post are distributed primarily in New York City and New York State.
In January, 1982, shortly after Lehrman's resignation from Rite Aid, a series of letters were sent to various newspapers and magazines in New York State from Rite aid headquarters in Pennsylvania on Rite Aid stationery over the signature of Patrick Early, Rite Aid's director of communications. The letters were similar in content, each one noting that the publication in question had in one way or another published an article which contained an "inaccuracy" with regard to Mr. Lehrman's prior relationship with the Rite Aid Corporation. For example, the following letter, dated January 12, 1982, was sent to the New York Times editorial page editor:
Recent articles about Lewis E. Lehrman's gubernatorial campaign have incorrectly identified him as chairman of the board of directors of the Rite Aid Corporation.Alex Grass is the chairman of the board of Rite Aid. Mr. Lehrman has never been chairman of the board nor has he ever been chief executive officer of the corporation.
Mr. Lehrman served as president of Rite Aid from 1969 until 1977. In 1977, he was named chairman of the executive committee. He resigned that post and his position on the Rite Aid board of directors effective Tuesday, January 5, 1982. As a result of that action, Mr. Lehrman no longer holds any office with the corporation nor is he an employee of Rite Aid.
Patrick M. Early, Director of Communications
Another letter, dated February 23, 1982, was sent in response to an article that appeared in The Recorder, a publication in Amsterdam, New York:
Your article in the January 25 edition of the Recorder dealing with the gubernatorial candidacy of Mr. Lewis Lehrman described Mr. Lehrman as the head of the Rite Aid chain.
Mr. Lehrman does not head the Rite Aid corporation. Alex Grass is president and chairman of the board of Rite Aid.
Mr. Lehrman served as president of Rite Aid from 1969 to 1977. In 1977, he was named chairman of the executive committee. He resigned that post and his position on the Rite Aid board of directors effective Tuesday, January 5, 1982. As a result of that action, Mr. Lehrman no longer holds any office with the corporation nor is he an employee of Rite Aid.
Patrick M. Early, Director of Communications
A review of the letters shows them to be similar in tone. In each instance, the letter corrects a technically inaccurate description of Lehrman as the former "chief" or "head" of Rite Aid (he was the former president) or of Lehrman as the "founder" of Rite Aid (he joined the company in 1964, two years after it began). The letter then would explain when Lehrman joined the company, his position with the company, and the fact that he had severed his connection with Rite Aid as of January 5, 1982. Often the letter would state that Grass, not Lehrman, had founded the company in 1962 and that Grass, not Lehrman, was now and had always been the company's chief executive officer.
The concept of monitoring the press coverage of the Lehrman campaign in New York State and responding to any perceived inaccuracies by the writing of letters was discussed with Alex Grass and approved by him. The decision apparently was prompted by a discussion between Alex Grass and Martin Grass, Alex Grass' son and an executive of Rite Aid. Martin Grass expressed his belief that Rite Aid would be subject to substantial media attention as a result of Mr. Lehrman's decision to run for governor, and that it would be a good idea to "protect" Rite Aid from what he perceived as the possibility of "negative" coverage. Deposition of Alex Grass, Ex. R, Affidavit of Neal M. Goldman, at 244; Deposition of Martin Grass, Ex. V, supra, at 29-33. Alex Grass testified that while he did not review the language of each individual letter, he had approved the concept of sending such letters. Deposition of Alex Grass, supra, at 244.
One such letter was sent to Michael Kramer, a political reporter for New York Magazine and a defendant in this action. The letter was prompted by an article written by Mr. Kramer entitled "Koch-22," which was published in New York Magazine on February 15, 1982. The article contained a reference to Mr. Lehrman that was perceived by Rite Aid's personnel to be inaccurate. Mr. Kramer ...