United States District Court, Southern District of New York
June 24, 1991
AROCHEM INTERNATIONAL, INC., AROCHEM CORPORATION, AND WILLIAM R. HARRIS, PLAINTIFFS,
HAROLD W. BUIRKLE, DEFENDANT.
The opinion of the court was delivered by: Stanton, District Judge.
Plaintiffs sue defendant Harold W. Buirkle for defamation and
for tortious interference with a contract and with a business
relationship. At the close of plaintiffs' presentation of their
case to the jury, the court directed a verdict for defendant.
This case is a skirmish in the battle between plaintiff
William R. Harris and Mr. Edwin E. Wells, Jr. (not a party to
this lawsuit) for the shares in Arochem International, Inc. and
Arochem Corporation ("Arochem") held by "Victory" (comprising
Victory Oil Company, Victory Holding Company and the Crail Fund
— none of whom is a party to this lawsuit) which might
give Harris or Wells control of Arochem.
Defendant Buirkle is an ally of Mr. Wells, with whom he made
an October, 1989 Joint Litigation Agreement (Joint Tr. Exh. 21)
in which Buirkle agreed to help Wells finance his litigation
expenses and related costs of preserving Wells' rights in
Arochem, and received rights to purchase an equity interest in
Arochem if Wells succeeded in buying out Victory's and Harris'
interest. Id. Buirkle has advanced $1,850,000 to Wells
under that agreement. (Stipulated Facts ¶ 11).
In 1987, Mr. Wells had helped plaintiff Harris obtain
financing from Victory to enable Harris to form Arochem, in
return for which Mr. Wells and Victory collectively received a
portion of Arochem's common stock. Mr. Harris, a Connecticut
resident, is Arochem's founder, chairman, president and
majority shareholder. Arochem is in the petroleum and
petrochemical business and has its executive offices in
Connecticut. (Stip. Facts ¶¶ 1, 3, 5).
Beginning in 1988, disputes concerning Arochem's operation
arose among the three parties. Because of these disputes,
Victory decided to sell its interest in Arochem either to Wells
or to Harris. Wells claims that sometime in March, 1989 he made
a binding agreement with Victory to purchase its interest.
(Stip. Facts ¶¶ 4-6).
On April 13, 1989, Victory filed suit in the United States
District Court for the Central District of California seeking,
among other things, a declaration that it was free to sell its
interest in Arochem to persons other than Wells. Wells answered
and counterclaimed, alleging that Victory had (i) repudiated
its contract to sell him its interest in Arochem, (ii)
repudiated its contractual obligation to obtain his consent to
Victory's sale of its Arochem interests, and (iii) denied, in
bad faith, the existence of its contract to sell him its
Arochem interest. On July 17, 1989, Harris sued both Wells and
Victory in the United States District Court for the District of
Connecticut. On August 28, 1989, Wells sued Harris in the same
court and also asserted derivative claims against Victory.
(Stip. Fact ¶¶ 7, 9).
In November, 1989, Harris and Victory entered into a Stock
Purchase and Settlement Agreement which provided for Harris'
purchase, and Victory's sale to him, of
its interest in Arochem (Joint Tr. Exh. 12). That Agreement was
executed in Connecticut.
Then at Mr. Wells' request, Robert Johnson, Eric Johnson, and
Sherry Hutchinson of Victory met with Edwin Wells and defendant
Buirkle in Los Angeles, California, on December 20 and 21,
1989. Before beginning their discussions, the participants
signed a Memorandum (Joint Tr. Exh. 70) which stated in part:
The undersigned have agreed to meet together to
attempt to resolve business and legal disputes
between and among themselves, including settlement
of claims that have been or might be brought in
litigation presently pending between and among
them in California and Connecticut. It is the
intention of the parties that the meeting shall be
deemed a compromise negotiation within the meaning
of Rule 408 of the Federal Rules of Evidence. As a
condition of participating in these settlement
discussions, the participants have each agreed
that all discussions at such meeting, to be held
on December 20 and 21, 1989, in Los Angeles,
California, shall be confidential settlement
discussions, to be used solely for the purposes of
At the meeting, Mr. Wells urged that Victory should sell its
Arochem interest to him, rather than to Mr. Harris, who (he
claimed) was looting Arochem, putting the money into offshore
accounts, and preparing to escape from the jurisdiction of the
United States courts. According to plaintiffs, defendant
Buirkle not only endorsed these statements (Johnson Trial
Testimony at 22-28), but at the close of the December 20
discussion, Mr. Buirkle also stated that it was ironic that
they were talking about "buying Mr. Harris out, when in fact we
should be putting him in jail." (Id. at 28).
The next day, the participants were joined by Mr. Wells'
attorney, Mr. Connell, and by Victory's attorney, Mr. Singer.
Buirkle presented Wells' offer to purchase Victory's interest
in Arochem. Although Wells offered less money than Harris,
Wells' offer included releases from litigation against Victory
for its alleged association with Harris' looting and lack of
effort to remove him from Arochem's management (Id. at
30-36). Mr. Connell stated that he was a "tough, East Coast
litigator" (Id. at 36), and that his client Wells
would sue Victory if it sold to Harris, and the lawsuit would
We would be brought up in front of a jury. I would
be cross-examined by him and be made to show that
I was a party to thefts of the company, thefts
that could have aggregated as much through that
period of time as 40 million dollars; generally
indicating that you better take a good, hard look
at the portion of the consideration that's not
cash, i.e., that is the releases, don't
underestimate the value of those.
And his role in this meeting was to convey to us
how valuable, how important it was for us not to
go up against him and up against Mr. Wells and to
take their deal otherwise a lot of bad things
would happen to us.
Id. at 36-37.
Apparently, Victory felt that the meeting was a "set up;"
that its purpose was not to discuss settlement of the
litigation between Wells and Victory, but rather to provide a
forum for Wells and Buirkle to malign Harris and urge
acceptance of their competing offer (See Johnson Tr.
Test. at 26; cf. at 35, 85; Pl. Mem. on Privilege at
On January 11, 1990 Mr. Harris and his representatives met in
New York City with Eric Johnson of Victory and others to
complete the sale of Victory's interest in Arochem to Harris.
The parties had resolved most of the open issues, and seemed
prepared to close the transaction, when Mr. Johnson privately
told Mr. Harris that Victory would not proceed with the sale
because of Wells' and Buirkle's statements at the December 20
and 21, 1989 meeting (Id. at 37-46, Harris Tr. Test.
The closing was postponed until February, while Victory
investigated Mr. Harris' finances and management of Arochem. By
the time the investigation was finished and Victory was once
again ready to sell its Arochem interest to Mr. Harris, the
corporate parent of his source of financing
(Drexel Burnham Lambert Trade Finance Inc.) was in bankruptcy,
and the transaction never closed.
Mr. Harris and Arochem then filed this lawsuit against Mr.
Buirkle, claiming defamation and tortious interference with the
contract and business relationship between Harris and Victory.
These allegations rest on Mr. Buirkle's statements at the
December 20, 1989 and December 21, 1989 meetings with Victory
and on his advancement of litigation expenses to Mr. Wells.
Because under California law, which applies to Buirkle's
statements, the challenged statements are privileged, the court
directed a verdict in defendant's favor.
I. CHOICE OF LAW
The basis of jurisdiction is diversity, so the choice of law
rules of the forum state — New York — are used to
determine which state's substantive law applies. Klaxon Co.
v. Stentor Electric Mfg. Co., 313 U.S. 487, 496-97, 61
S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); American Protein
Corp. v. Ab Volvo, 844 F.2d 56, 62 (2d Cir.), cert.
denied, 488 U.S. 852, 109 S.Ct. 136, 102 L.Ed.2d 109
(1988); Machleder v. Diaz, 801 F.2d 46, 51 (2d Cir.
1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1294, 94
L.Ed.2d 150 (1987).
A. New York State's "Interest Analysis" Rule.
In Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d
743, 191 N.E.2d 279 (1963), the New York Court of Appeals
adopted the "interest analysis" test, which applies the
substantive law of that state "which, because of its
relationship or contact with the occurrence or the parties, has
the greatest concern with the specific issues raised in the
litigation." Id. at 481, 240 N.Y.S.2d 743,
191 N.E.2d 279. The Babcock court explained that generally, where
a loss distribution rule is at issue, the law of the parties'
residence applies. Where a rule governing conduct is at issue,
the law of the place of the wrong applies.
Where the defendant's exercise of due care in the
operation of his automobile is in issue, the
jurisdiction in which the allegedly wrongful
conduct occurred will usually have a predominant,
if not exclusive, concern. In such a case, it is
appropriate to look to the law of the place of the
tort so as to give effect to that jurisdiction's
interest in regulating conduct within its borders,
and it would be almost unthinkable to seek the
applicable rule in the law of some other place.
Id. at 483, 240 N.Y.S.2d 743, 191 N.E.2d 279.
Presumptively, therefore, the state where the conduct occurs is
recognized as having the greatest interest in regulating it, by
imposing liability on those who violate its standards and
protecting those who conform with its laws. See Schultz v.
Boy Scouts of America, Inc., 65 N.Y.2d 189, 198-99, 491
N YS.2d 90, 95-96, 480 N.E.2d 679 (1985) (citing Restatement
[Second] of Conflicts of Law § 145, comment d, at 417-18).
In this case, defendant Buirkle's allegedly libelous
statements were made at a private meeting in California, and
that is the only place the statements were published. Under
Babcock, New York would apply California's rules
regulating that conduct.
B. The Restatement [Second] of Conflicts of Law on the
of Law in Defamation Actions.
Restatement [Second] of Conflicts of Laws (hereinafter
Restatement) § 149 states: "In an action for defamation,
the local law of the state where the publication occurs
determines the rights and liabilities of the parties, except as
stated in § 150. . . ."
Mr. Harris relies on § 150(2):
When a natural person claims that he has been
defamed by an aggregate communication [i.e. one
with extensive circulation], the state of most
significant relationship will usually be the state
where the person was domiciled at the time, if
the matter complained of was published in that
However, § 150(2) by its own terms does not apply: first,
because Buirkle's statements were not an "aggregate"
communication; and second, because his statements were never
published in Connecticut. See Davis v. Costa-Gavras,
580 F. Supp. 1082, 1091 (S.D.N.Y. 1984) ("In a libel case, the
state of most significant relationship is usually the state
where the plaintiff was domiciled at the time, if the libel
was published in that state, since that is where he is
presumed to have been most injured." (Citing Restatement §
150(2)) (emphasis added)). Cf., Grass v. News Group
Publications, 570 F. Supp. 178, 186 (S.D.N.Y. 1983)
(defamatory statements published locally are subject to law of
place of publication, although plaintiff resides in another
Buirkle's statements were not published in any
instrument of mass media and not published in Connecticut.
Restatement § 150(2) is inapplicable, and Restatement §
C. Plaintiffs' Connecticut Residence and the Locus of the
Plaintiffs argue that the law of the locus of the tort
applies, and the locus is Connecticut because they suffered
injury there. See Rosenberg v. Pillsbury Co.,
718 F. Supp. 1146, 1150 (S.D.N.Y. 1989); In re AM Int'l, Inc.
Sec. Litig., 606 F. Supp. 600, 609 (S.D.N.Y. 1985) ("where
the jurisdiction of the alleged negligent conduct and that of
the injury differ, the law of the place of injury generally
governs.") (citations omitted); Reeves v. American
Broadcasting Cos., 580 F. Supp. 84, 90 (S.D.N.Y.),
aff'd, 719 F.2d 602
(2d Cir. 1983) (although
nationwide television broadcast emanated from Washington,
plaintiff's reputation was injured in California where
In Babcock, 12 N.Y.2d at 477 n. 2, 240 N.Y.S.2d 743,
191 N.E.2d 279, the court discussed three possible loci of a
tort: the "place of the wrong," the "place of the injury," and
the "place of the tort" which designates a place where both
wrong and injury occur. Here, the combined "place of the tort"
concept is inapposite. The question is whether California, the
place of conduct, or Connecticut, the place of injury, has the
Because the statements were made in California, by
participants in, and with reference to, litigation then pending
in California, that is the state which has the greatest
interest in the application of its laws to actions based on
those statements. Furthermore, even if California law does not
apply to all the issues in the case, it applies to the specific
issue of whether Mr. Buirkle's statements are actionable.
See Davis, 580 F. Supp. at 1091 (citing Restatement
§ 150(e)); Id. at 1093 (In defamation cases,
"Strong policy reasons exist for deciding issues whose major
impact is on the behavior of potential defendants according to
the rules of the jurisdiction where the conduct that gives rise
to liability takes place, especially when that conduct may be
protected speech.") (citations omitted); Bio/Basics Int'l
v. Ortho Pharmaceutical, 545 F. Supp. 1106, 1113-14
(S.D.N.Y. 1982). See also, Restatement § 163.
Cf. Block v. First Blood Assocs., 691 F. Supp. 685,
698-99 (S.D.N.Y. 1988) (Under California's "governmental
interest" test, "New York has a compelling interest in policing
tortious conduct committed in New York, by a New York attorney,
with reference to future or pending litigation in New York."
Therefore New York law applied, although plaintiff was a
Standing alone, plaintiffs' residence is not enough to
determine the choice of law. See Zerman v. Sullivan &
Cromwell, 677 F. Supp. 1316, 1318-19 (S.D.N.Y. 1988);
El Cid, Ltd. v. New Jersey Zinc Co.,
575 F. Supp. 1513, 1519-20 (S.D.N.Y. 1983). Plaintiffs rely on
Machleder v. Diaz, 801 F.2d at 51-52, in which the
Second Circuit held that New Jersey law applied to a defamation
claim based on a television news broadcast brought by a New
Jersey resident against a New York broadcasting company.
However, in Machleder the plaintiff was interviewed in
New Jersey, the report was part of a series prepared by a New
Jersey reporter, and the broadcast was transmitted among other
places, to Northern New Jersey. See also Reeves, 580
F. Supp. at 90 (California had greatest interest in defamation
action not only because plaintiff was a California resident,
but also because nationwide broadcast aired in California and
centered on an investigation of activities which occurred in
California); El Cid, 575 F. Supp. at 1519 ("While . .
. cases have indeed applied the laws of the jurisdictions in
which the plaintiffs were located, those jurisdictions were, in
addition, the sites of other events or circumstances crucial to
the causes of action themselves."); Grass, 570 F. Supp.
at 186 (New York law applies where Pennsylvania plaintiff sued
New York magazine with essentially local circulation and
libelous statements related to qualifications of candidate for
New York State governor).
Accordingly, California law defines the scope of the
protection afforded to these statements.
II. THE SCOPE OF CALIFORNIA'S PRIVILEGE STATUTE
Under California law, to be actionable, defamatory statements
must be both false and unprivileged. See Cal.Civ.Code
§§ 45, 46. California Civil Code § 47(b) provides that
"A privileged publication or broadcast is one made — . .
. 2. In any (1) legislative or (2) judicial proceeding, . . ."
Although originally restricted to defamation actions, the
privilege is now applied to all torts except malicious
prosecution. Silberg v. Anderson, 50 Cal.3d 205, 212,
266 Cal.Rptr. 638, 642, 786 P.2d 365, 369 (1990). The
privilege is absolute, and is not affected by malice or other
bad motive of the speaker. Id. See also, Ribas v.
Clark, 38 Cal.3d 355, 364, 696 P.2d 637, 643, 212 Cal.
Rptr. 143, 148-49 (1985) (tortious nature and purpose of
defendant's actions does not negate privilege); accord,
Financial Corp. of America v. Wilburn, 189 Cal.App.3d 764,
777, 234 Cal.Rptr. 653, 660 (6th Dist. 1987)
("Plaintiffs' premise is that the subjective intent, purpose,
or knowledge of a writer can destroy the privileged status of
otherwise privileged statements. The law is otherwise.")
The statements must satisfy four criteria. "[T]he privilege
applies to any communication (1) made in judicial or
quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of
the litigation; and (4) that have some connection or logical
relationship to the action." Silberg, 266 Cal.Rptr.
at 642, 786 P.2d at 369 (citations omitted). "Further, it
applies to any publication required or permitted by law in the
course of a judicial proceeding to achieve the objects of the
litigation, even though the publication is made outside the
courtroom and no function of the court or its officers is
involved." Id. (citations omitted).
A. Buirkle's Statements Were Made in the Course of a
Under California law, statements made in pursuit of
settlement are part of judicial proceedings. See Rosenthal
v. Irell & Manella, 135 Cal.App.3d 121, 126, 185 Cal.
Rptr. 92, 95 (2d Dist. 1982); Asia Inv. Co. v.
Borowski, 133 Cal.App.3d 832, 843, 184 Cal.Rptr. 317,
324 (3d Dist. 1982) ("Settlements of disputes has [sic] long
been favored by the courts and attorneys should be accorded
wide latitude in making statements during settlement
negotiations."); O'Neil v. Cunningham, 118 Cal.App.3d 466,
475, 173 Cal.Rptr. 422, 427 (1st Dist. 1981). To the
extent that Buirkle threatened further lawsuits if the
Victory/Harris contract closed, such threats are privileged as
long as further litigation of this nature was genuinely
contemplated by Messrs. Wells and Buirkle, and the prior and
subsequent behavior of the parties leaves no doubt that it was.
234 Cal.Rptr. at 660; Fuhrman v. California Satellite
Systems, 179 Cal.App.3d 408, 420-23, 231 Cal.Rptr. 113,
118-19 (3d Dist. 1986); Rosenthal, 185 Cal.Rptr. at
95; Izzi v. Rellas, 104 Cal.App.3d 254, 163 Cal.
Rptr. 689 (2d Dist. 1980); Larmour v. Campanale,
96 Cal.App.3d 566, 568-59, 158 Cal.Rptr. 143, 144-45 (4th Dist.
1979); Lerette v. Dean Witter Org. Inc., 60 Cal.App.3d 573,
577-78, 131 Cal.Rptr. 592, 594-95 (2d Dist. 1976).
Plaintiffs offered no evidence, and did not contend, that the
threats were a sham.
B. Buirkle Was a Participant Authorized by Law.
Mr. Buirkle, although not a litigant, was an "other
participant authorized by law" by virtue of the Joint
Litigation Agreement (Joint Tr. Exh. 21) he had with Mr. Wells,
an actual litigant. See Doctors' Company v. Superior
Court, 225 Cal.App.3d 1284, 275 Cal.Rptr. 674, 680-82
(3d Dist. 1990) (where insurer provides defense for party,
realities of its role dictate that insurer is authorized
participant for purpose of section 47(2), since insurer has
vital stake in progress and outcome of litigation); accord,
Rosenthal, 185 Cal.Rptr. at 95; Izzi, 163 Cal.
Rptr. at 695.*fn3 See Abraham v. Lancaster Community
Hosp., 217 Cal.App.3d 796, 823, 266 Cal.Rptr 360, 377 (2d
Dist. 1990) (local medical community members have substantial
interest in outcome of pending litigation against local doctor
and are entitled to privilege as authorized participants);
ITT Telecom Prods. v. Dooley, 214 Cal.App.3d 307,
316-17, 262 Cal.Rptr. 773, 778 (6th Dist. 1989) (statutory
language does not confine privilege to witnesses, parties, and
attorneys); Profile Structures, Inc. v. Long Beach Bldg.
Material, 181 Cal.App.3d 437, 444, 226 Cal.Rptr. 192,
196 (2d Dist. 1986) (bank and university which held assets that
could become subject to attachment are authorized
participants); Costa v. Superior Court, 157 Cal.App.3d 673,
678, 204 Cal.Rptr. 1, 4 (1st Dist. 1984). The
Joint Litigation Agreement gave Mr. Buirkle a vital financial
stake in the course and outcome of the litigation, making him
an authorized participant.*fn4
C. Buirkle's Statements Were Made to Achieve the Objects
the California Litigation.
The requirement that the communication be in
furtherance of the objects of the litigation is,
in essence, simply part of the requirement that
the communication be connected with, or have some
logical relation to, the action, i.e. that it not
be extraneous to the action. . . . The
"furtherance" requirement was never intended as a
test of a participant's motives, morals, ethics or
Silberg, 266 Cal.Rptr. at 647, 786 P.2d at 374.
See Howard v. Drapkin, 222 Cal.App.3d 843, 863-64,
271 Cal.Rptr. 893, 905 (2d Dist. 1990). The object of the
ongoing and the threatened litigation was that Victory sell its
Arochem interest to Wells rather than to Harris. The purpose of
Buirkle's statements was to persuade Victory that it would be
best to accede to Wells' demands, and thus obtain, among other
things, releases from litigation. Because Buirkle's statements
were, in fact, in furtherance of the objects of the litigation,
his motive for making them and Wells' motive for calling the
meeting, even if malicious,
are not material. See Wilburn, 234 Cal.Rptr. at 659.
D. The Statements had Some Connection or Logical Relation
The California courts construe broadly the requirement of
connection or logical relation to the action. See Thornton
v. Rhoden, 245 Cal.App.2d 80, 86-93, 53 Cal.Rptr. 706,
711-16 (2d Dist. 1966) (statement must have some connection
with proceedings, but need not meet technical requirements of
relevancy, materiality or pertinency. "[D]oubts are to be
resolved in favor of relevancy and pertinency; that is to say,
the matter to which the privilege does not extend must be so
palpably wanting in relation to the subject matter of the
controversy that there can be no reasonable doubt of its
impropriety." 53 Cal.Rptr. at 716.) (quoting Veeder, Absolute
Immunity in Defamation, Judicial Proceedings (1909) 9
Colum.L.Rev. 463, 600, 612). Accord, Cayley v. Nunn,
190 Cal.App.3d 300, 235 Cal.Rptr. 385 (2d Dist. 1987);
Profile Structures, 226 Cal.Rptr. at 194-95; Costa,
204 Cal.Rptr. at 3; Izzi, 163 Cal.Rptr. at 693.
Buirkle's statements were relevant to persuading Victory to
settle its California action with Wells on terms favorable to
Since under California law Mr. Buirkle's statements fall
within the privilege afforded to statements made in the course
of judicial proceedings, they are not actionable. Plaintiffs'
defamation claim therefore fails. To the extent that
plaintiffs' claims for tortious interference are based on those
statements, they fail for the same reason.
E. Defendant's Allegedly Tortious Course of Conduct.
Plaintiffs allege that aside from those statements, Buirkle
engaged in a tortious course of conduct to interfere with their
contract and business relationship with Victory. They assert
that they are entitled to introduce Buirkle's statements to
demonstrate his tortious course of conduct. See White v.
Western Title Ins. Co., 40 Cal.3d 870, 888, 221 Cal.Rptr.
509, 518, 710 P.2d 309, 318 (1985) (en banc) (while suit based
squarely on privileged statements cannot be sustained, suit
based on underlying course of conduct evidenced by such
statements can be sustained, and privileged statements are
admissible to prove underlying acts if underlying acts are
independently tortious.) Plaintiffs rely on Pacific Gas &
Elec. v. Bear Stearns & Co., 50 Cal.3d 1118, 1132-33 n.
12, 270 Cal.Rptr. 1, 8-9, 791 P.2d 587, 594-95 (1990) (en
banc) where the court observed that "while it could be argued
that an exhortation to sue might be privileged, financing and
otherwise promoting the litigation would not be." However, the
only evidence of conduct introduced at trial against Buirkle
was that he financed Wells' litigation against Harris. (Harris
Trial Test. at 33-38). That action does not constitute an
independent tort. Pacific Gas & Elec., 270 Cal.Rptr.
at 11-12, 791 P.2d at 597-98:
Not every person who wishes to achieve the object
of a lawsuit, or who is involved in the bringing
of a lawsuit, is a named party. In fact, we have
no public policy against the funding of litigation
by outsiders. If any person who induced another to
bring a lawsuit involving a colorable claim could
be liable in tort, free access to the courts could
be choked off with an assiduous search for unnamed
parties. . . . It is essentially seeking to abort
the lawsuit by starving the litigant of funds.
. . . It is repugnant to this basic philosophy
[ie. the basic philosophy of the legal system] to
make it a tort to induce potentially meritorious
litigation . . .
(citations omitted). Buirkle's underlying course of conduct was
not independently tortious, and plaintiffs' intentional
interference claims fail.*fn5
By error, a judgment was entered on June 12, 1991, reciting
that "the jury [had]
returned a verdict in favor of the defendant." An Amended
Judgment, reflecting the direction of the verdict by the court
at the close of plaintiffs' case, is being filed herewith.
This court having granted defendant's motion for a directed
verdict at the close of plaintiffs' presentation of their case
to the jury, and a judgment dated June 12, 1991 having been
entered, erroneously reciting that "the jury [had] returned a
verdict in favor of defendant," it is hereby
ORDERED that the Judgment dated June 12, 1991 is vacated; and
it is further ADJUDGED that plaintiffs' complaint is dismissed
on the merits with costs and disbursements to defendant as
provided by law.