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Peter Paul Biro v. Conde Nast

August 9, 2012


The opinion of the court was delivered by: J. Paul Oetken, District Judge:


This is a diversity action for defamation and injurious falsehood. Plaintiff Peter Paul Biro was the subject of an article written by Defendant David Grann that appeared in the July 12-19, 2010 issue of the New Yorker magazine (the "Article"), published by Defendant Conde Nast, a division of Advance Magazine Publishers Inc. Biro alleges that the Article was false and defamatory in a variety of respects. Defendants Grann and Advance Magazine Publishers Inc. ("Advance") (collectively, "Defendants") have moved to dismiss the Complaint against them in its entirety. For the reasons that follow, Defendants' motion is granted in part and denied in part.

I. Background

A. The Parties

Biro is a Canadian citizen in the business of art restoration and authentication. He is well known in the art world for having developed scientific approaches to art authentication through the analysis of fingerprints.

Defendant David Grann is a citizen of New York and a journalist who has written numerous books and feature stories for publications including the New Yorker, where the Article appeared.

Defendant Advance is a corporation with its principal place of business in New York and is the publisher of the New Yorker.

The other defendants in the case are individuals and publications that reported on the Article (and on Biro) after the Article was published. The claims against these defendants are not at issue on this Motion.

B. The Article

Because the Article is lengthy and the allegations in the Complaint concern many passages from it, a copy of the Article is attached as an appendix to this Opinion.*fn1 A general summary of the Article follows.

The Article can be roughly divided, for purposes of this lawsuit, into five sections. In the first section, Grann discusses the practice of art authentication-which he describes as "a rare, mysterious, and often bitterly contested skill"-and the people who perform it, who are called "connoisseurs." (Article at 1.) The Article describes how traditional connoisseurs are scholars of a particular artist or period. To authenticate a work, connoisseurs rely on objective analysis of particular characteristics of an artist's style, consideration of the materials available and in use at the time the artist worked, and scientific analysis to attempt to date the work. But they also rely on a more subjective "immediate reaction," "ineffable sense," or "sixth sense" about a work. (Article at 2.)

This first section of the Article focuses on one connoisseur in particular, Martin Kemp, and his investigation to determine whether a portrait of a girl, called "La Bella Principessa" was, in fact, drawn by Leonardo Da Vinci. If authenticated, the drawing would have been the first newly discovered work by Leonardo to be authenticated in over a century.*fn2 Connoisseurs were sharply divided as to whether the work was an authentic Leonardo. The Article then introduces Biro as someone to whom Kemp turned when traditional connoisseurs could not resolve the dispute.

The second section of the Article properly introduces Biro, first detailing Grann's visit to Biro's home and laboratory and describing the advanced technical equipment and techniques that Biro uses to analyze works of art. The Article explains how Biro "has tried to render objective what has historically been subjective. In the process, he has shaken the priesthood of connoisseurship, raising questions about the nature of art, about the commodification of aesthetic beauty, and about the very legitimacy of the art world." (Article at 6.)

The Article then provides Biro's biographical background, starting with his father, Geza Biro, an immigrant from Hungary who was a painter and art restorer. Biro and his brother, Laszlo, first served as apprentices in his father's art restoration business and Biro eventually worked in the business full time.

The Article proceeds to explain the genesis of Biro's fingerprint analysis approach. In 1985, after beginning to clean and restore a dirty, damaged landscape painting that he and his brother had purchased, Biro discovered that the painting shared characteristics with the works of the English painter J. M. W. Turner. Connoisseurs to whom Biro and his brother showed the work dismissed it as a "tattered imitation." (Article at 9.) But Biro soon discovered that undisputed works by Turner contained fingerprints that could potentially be matched to fingerprints on the work he was restoring. After studying fingerprint analysis techniques, Biro compared high resolution images of verified Turner works and discovered that the fingerprints in those works matched those on his painting. A Turner scholar verified that the composition and coloring pointed to the hand of Turner, and a fingerprint examiner for the West Yorkshire police confirmed that the prints matched.

The Article also describes the case of a dispute over whether a particular work, purchased for five dollars by a retired truck driver named Teri Horton at a thrift shop in California, was painted by Jackson Pollock.*fn3 Traditional connoisseurs rejected the notion that the work was a genuine Pollock, but Biro found a fingerprint on the back of the canvas that matched a fingerprint on a paint can that is displayed in Pollock's old studio. Some scholars noted that Horton's picture featured acrylic paint, which, the Article notes, "had not previously been documented in Pollock's drip paintings." (Article at 12.) However, Biro performed a "microchemistry test" on pigment samples from the floor and found that the first sample he tested was acrylic. (Id.) He also revealed that gold paint from a matchstick embedded in the studio floor matched gold paint found in the Horton painting.

The Article describes how over the course of the past ten years, Biro's work has become increasingly accepted and respected in the art world. In 2009, Biro helped form a company, Art Access and Research, which analyzes and authenticates paintings. Biro serves as its director of forensic studies. His clients included museums, galleries, dealers, and major auction houses, and his work has been published extensively.

This second section concludes with a description of how Biro discovered a fingerprint on "La Bella Principesa" that matched a fingerprint from another Leonardo work. As a result, Biro "was lauded around the world." (Article at 14.)

In the third section of the Article, Grann explains how he began noticing "small, and then more glaring, imperfections in [the] picture" of Biro. (Article at 14-15.) He first identifies certain inconsistencies and suspicious details with regard to Biro's investigation of the Horton painting and another set of purported Pollock paintings. He then describes how he started to dig deeper into Biro's past and "discovered an underpainting that [he] had never imagined." (Article at 15.)

Grann describes how he traveled to the courthouse in Montreal to search for records from past lawsuits against Biro. The Article then provides details of several of those lawsuits:

(1) A lawsuit from 1981 by brothers Sam and Syd Wise, who alleged that Biro had sold them forged paintings falsely attributed to the Canadian artist Goodridge Roberts. The Article details Biro's evasiveness at a deposition when asked about the provenance of the paintings. The Wises obtained a court order to seize various items at Biro's gallery, including a painting whose frame had a plaque engraved with the name John Constable. At trial, Biro explained that he was restoring that painting for a client, but did not notify that client that the painting had been seized, because the painting was not, in fact, by John Constable. The court found in favor of the Wises.

(2) A lawsuit from two years later by an art collector named Saul Hendler. The Article explains that Biro and his brother approached Hendler asserting that they had found a painting that they suspected was by Renoir (and was signed by Renoir), which, if authenticated, would be worth millions of dollars. The Hendlers fronted them $9,000 to purchase the work, which would then be authenticated by the Biros, and the Hendlers and Biros would split the profits when the painting was sold. However, a Renoir expert determined that the painting was fake and the signature forged. The Biros refunded Hendler half his money and agreed to give him the painting. When Hendler brought the painting home, he realized that it looked different and concluded that it was not the same painting that he had purchased. (Hendler's wife tells Grann that she believes that Biro's father, who was a skilled art restorer, had created the ersatz copy of her husband's painting.) He eventually sued the Biros for the rest of the money. The Court, based on expert testimony, determined that the paintings were different and awarded Hendler several thousand dollars.

(3) A lawsuit by Serge Joyal, now a senator in Canada, alleging that after Joyal left a nineteenth century drawing with the Biros to be restored, Biro notified Joyal that it was stolen from his car and that there was no insurance. Biro did not file a police report and pleaded with Joyal to wait before going to the authorities. The court awarded Joyal seven thousand dollars, plus interest.

The Article also describes how Biro was repeatedly sued for unpaid debts, ultimately declared bankruptcy, and never paid many of the judgments against him.

In the fourth section, Grann digs more deeply into suspicious aspects of Biro's background. The Article describes how Biro was part of an effort to launch a business venture called "Provenance," which would purchase paintings that could then be authenticated as masterpieces by Biro and sold for millions of dollars. The business plan estimated that each year the company would accept twenty to thirty possible masterpieces for evaluation, of which nearly half would be authenticated. One of the key figures behind the Provenance venture was an art dealer named Tod Volpe, who the Article later reveals had been convicted of defrauding his clients of nearly two million dollars and had served two years in prison.

The Article also details another instance of Biro's having been "suspected of creating an investment scheme around a seemingly precious object, with the promise that it would eventually reap huge profits." (Article at 21.) In that incident, Biro and his brother worked with a Canadian financial adviser, Richard Lafferty, to authenticate a painting the Biros claimed to have found in an antique store. The work was purportedly by a disciple of Raphael, Perino del Vaga. Biro claimed to have found a fingerprint that could be matched to one on an undisputed work by Perino, and also claimed to have invented a unique ultrasound instrument (which he called a "Perinoscope") which he used to detect a note, signed by Raphael and dated April 5, 1520, hidden inside a secret compartment in the picture's frame. Lafferty, who was elderly and nearing the end of his life, spoke of the painting as the "holy grail," and, all told, invested up to a million dollars in the process of authenticating the painting. (Article at 22.) A research team at Harvard analyzed the message and concluded that "it had never seen 'sixteenth-century ink act as it does on that particular document.'" (Id.) The Article quotes a leading scholar on the Renaissance as suggesting that the work was "a very skilled, elaborate and expert hoax." (Id.)

Tod Volpe asked at least one of Biro's clients, Ken Parker, for a contribution of five million dollars toward launching the venture. Around that time, Biro was in the process of evaluating fingerprints he had found on possible Jackson Pollock paintings that Parker had received from his father. Biro stated that he had matched a print to the same print on the paint can found in Pollock's studio and on Teri Horton's painting. After Parker discovered Volpe's criminal background and confronted Biro, Biro stated that he had severed all ties with Volpe.

Parker also learned that his father had obtained the work from a couple named Thelma and Norman Grossman, who told Parker that she had obtained the painting "for a few hundred dollars from a young artist in Brooklyn who was skilled at imitating famous artists. As she put it, it is certain that the painting 'is not a Jackson Pollock.'" (Article at 23.)

In the course of his investigation, Parker worked with Theresa Franks and her company, Global Fine Art Registry, both defendants in this case. Franks hired Tom Hanley, the chief of police in Middlebury, Vermont, who had more than two decades' experience as a fingerprint examiner. Hanley attempted to study Biro's methods, and asked to see the evidence that Biro had used to authenticate the Teri Horton painting, but Biro declined the request.

Hanley later examined Parker's painting, which Biro had worked on. Hanley examined the fingerprints on the back of the painting's frame (which Parker had claimed not to have noticed before giving the painting to Biro). Hanley noted that two of the prints "were black, as if they had been made with ink." (Article at 24.) Hanley concluded, "[b]ased on the clarity of the impression, . . . that the fingerprint had to be relatively new-certainly not from half a century ago when Pollock was alive." (Id.) Hanley also observed a liquid varnish over the fingerprints, which Biro had told Parker was a "resin process" to make the print more visible. Grann states that Hanley "began to wonder if he was seeing something virtually unheard of: forged fingerprints." (Id.)

A different examiner, Lawrence Rooney, a retired detective sergeant and latent-print examiner with two decades of experience as a fingerprint analyst, "agreed that the fingerprint appeared too recent to have come from Pollock." (Id.) Rooney also stated that the use of the "liquid seal" coating was "beyond all acceptable professional methods of latent print preservation and opens the door to many valid questions relating to the latent prints' origin of placement and development." (Id.) A third expert, Pat A. Wertheim, who works in the Arizona Department of Public Safety and teaches fingerprint analysis to law enforcement agencies, noted that someone could forge a fingerprint with a rubber stamp or an engraving made from a photograph of a fingerprint. Grann describes Wertheim's analysis of the prints, and his observation that, "[i]n his more than three decades as an examiner, he had never seen a set of fingerprints like this." (Article at 25.) In particular, the fingerprints were too similar to each other, and did not show the inconsistencies that would naturally appear from multiple prints from a real finger. Wertheim concluded that the prints "screamed forgery," and were likely created by a rubber stamp. (Id.)

Grann concludes this section by stating that

[i]f a forgery's success were to depend on fake fingerprints, rather than on the sly imitation of a painter's style, it would represent a radical departure from the methods employed by art forgers over thousands of years. And yet such a forgery would perfectly reflect the contemporary faith in science to conquer every realm, even one where beauty is supposed to be in the eye of the beholder. (Article at 26.)

In the last section of the Article, Grann again visits Biro's home and confronts him with what he had learned about the old lawsuits, the various allegations against Biro, and the evidence that the fingerprints were not authentic. The Article details how Biro denied or attempted to explain away each of the inconsistencies and accusations again him. When Grann "continued to question Biro about whether any fingerprint on the Parker's painting was a forgery, he suddenly asked 'What if maybe it is?' Though he disagreed with Wertheim's analysis, his conclusion 'could be right.' Still, Biro had said, this didn't mean that he was the culprit: 'Why is everybody after me?'" (Article at 28.)

The Article then returns to the possible Leonardo drawing, "La Bella Principesa." Plaintiff did not actually handle the drawing itself, but was sent multispectral images from another laboratory. Martin Kemp, who discovered the work, expressed his confidence in Biro's work, but other scholars continued to dispute whether the work was a genuine Leonardo. In a book that Kemp authored about the work, Biro wrote a chapter called "Fingerprint Examination," in which he included images of the fingerprints side by side with arrows showing eight overlapping characteristics between them. Grann speaks with another fingerprint examiner who reviewed the chapter and stated that "most of the arrows don't point to actual overlapping characteristics, just random details," and that there is not sufficient detail for a true match to be made: "No other examiner I know would sign off on it . . . . I couldn't even get it past the door." (Article at 29.) Grann asked Biro if "he might have been wrong in suggesting that Leonardo had ever touched 'La Bella Principesa.' He looked up at the sky and said, 'It's possible. Yes.'" (Article at 30.)

Throughout the Article, Grann discusses the inherently controversial nature of art authentication, as well as the public's distrust of an elite subset of people who claim to have the sole authority to determine whether a work is worth millions of dollars or next to nothing. He also discusses the tension between the potential democratizing element of using objective science to authenticate art works, and the fact that such work is highly technical and may depend on specialized techniques and equipment (and even then may not lead to consensus). Toward the end of the Article, Grann muses that [c]onnoisseurship is rife with flaws. It is susceptible to error, arrogance, even corruption. And yet there is something about that "strange breed of cat," as [art scholar Thomas] Hoving referred to the best connoisseurs, who could truly see with greater depth- who, after decades of training and study and immersion in an artist's work, could experience a picture in a way that most of us can't. Connoisseurship is not merely the ability to discern whether an art work is authentic or fake; it is also the ability to recognize whether a work is a masterpiece. Perhaps the most uncomfortable truth about art is that such knowledge can never be truly democratic. (Article at 30-31.)

The Article concludes by describing how Biro informed Grann that he was in the process of "pioneering a forensic method that would further revolutionize the process of authenticating art: DNA analysis." He had found several hairs on Teri Horton's painting and had also removed several hairs trapped in the dried paint on Pollock's studio floor. "Matching an artist's DNA on a painting," Biro told Grann, "would finally remove doubt from the authentication process. It would be, he said, a 'holy grail.'" (Article at 31.)

C. Procedural History

Biro brought these claims against Grann, Advance, and other defendants no longer in the case on June 29, 2011. On September 27, 2011, Biro filed the First Amended Complaint against Grann and Advance.

A briefing schedule for Defendants' motion to dismiss the Complaint was set forth in a Case Management Plan issued September 6, 2011. (Dkt. No. 11.)

On October 31, 2011, the Court granted Biro leave to file a supplemental complaint to add additional claims against additional parties who republished allegedly false and defamatory facts from the Article. (Dkt. No. 19.) Biro represented to the Court that the new Complaint would not change any of the allegations against the Defendants, and would only add allegations and claims against the new defendants. Accordingly, the Court held that the briefing schedule for Defendants' motion to dismiss would remain in place, and that Defendants' motion would be applied to the operative complaint, once it was filed. (Id.)

The same day, Defendants filed the instant motion. (Dkt. No. 20.)

On December 5, 2011, Biro filed the Second Amended and Supplemental Complaint ("SASC"), adding claims against Louise Blouin Media Inc., Global Fine Art Registry LLC, Theresa Franks, Business Insider, Inc., Gawker Media LLC, International Council of Museums, Georgia Museum of Art, and Paddy Johnson. (Dkt. No. 27.) The Court now applies Defendants' motion to dismiss to the claims against them in the SASC.*fn4

After this motion was fully briefed, there was additional motion practice between Biro and some of the newly added defendants. Biro also seeks leave to file a Third Amended Supplemental Complaint. These issues will be addressed in separate orders.

On April 23, 2012, the Court held oral argument on this motion. (Dkt. No. 68.)

II. Legal Standards

A. Motions to Dismiss Generally

In order to survive a motion to dismiss pursuant to Federal Rule 12(b)(6), a plaintiff must plead sufficient factual allegations "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). The Court must accept as true all well-pleaded factual allegations in the complaint, and "draw [ ] all inferences in the plaintiff's favor." Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006) (internal quotations omitted). On the other hand, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949; see also Twombly, 550 U.S. at 555 (noting that a court is "not bound to accept as true a legal conclusion couched as a factual allegation" (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986))).

When determining the sufficiency of a claim under Rule 12(b)(6), the court is normally required to consider only the allegations on the face of the pleading. "Documents that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). In defamation actions, this typically includes the documents containing the allegedly defamatory statements. See Fuji Photo Film U.S.A., Inc. v. McNulty, 669 F. Supp. 2d 405, 414 n.52 (S.D.N.Y. 2009) (citing Gargiulo v. Forster & Garbus Esqs., 651 F. Supp. 2d 188, 190 (S.D.N.Y. 2009) and Riel v. Morgan Stanley, No. 06 Civ. 524, 2007 WL 541955, at *4, *8 (S.D.N.Y. Feb. 16, 2007)).

The Court may also consider documents subject to judicial notice. See Kramer v. Time Warner Inc., 937 F.2d 767, 773-74 (2d Cir. 1991). The Second Circuit has explained that, on a motion to dismiss, "[a] court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Global Network Communications, Inc. v. City of New York, 458

F.3d 150, 157 (2d Cir. 2006) (quoting Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)); cf. Roth, 489 F.3d at 509 (noting that "where public records that are integral to a fraud complaint are not attached to it, the court, in considering a Rule 12(b)(6) motion, is permitted to take judicial notice of those records . . . in order to determine what statements they contained but . . . not for the truth of the matters asserted." (internal citations, quotation marks and brackets omitted)). Such documents may be authenticated with evidence "sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). This can include an affidavit or declaration by a witness with knowledge of what the item is, as well as from the "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Fed. R. Evid. 901(b).

B. Defamation Claims

"Defamation is the injury to one's reputation either by written expression, which is libel, or by oral expression, which is slander." Idema v. Wager, 120 F. Supp. 2d 361, 365 (S.D.N.Y. 2000). "Under New York law, a plaintiff must establish five elements to recover in libel: (1) a written defamatory statement of fact concerning the plaintiff; (2) publication to a third party; (3) fault (either negligence or actual malice depending on the status of the libeled party); (4) falsity of the defamatory statement; and (5) special damages or per se actionability (defamatory on its face)." Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000). A defamatory statement is one that exposes the plaintiff "to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or . . . induces an evil opinion of one in the minds of right-thinking persons, and . . . deprives one of . . . confidence and friendly intercourse in society.'" Karedes v. Ackerley Group, Inc., 423 F.3d 107, 113 (2d Cir. 2005) (quoting Celle, 209 F.3d at 177). "A statement that tends to injure another in his or her trade, business or profession is defamatory per se." Fuji Photo Film U.S.A., 669 F. Supp. 2d at 411 (internal quotation marks omitted).

New York state courts require a plaintiff to state defamation claims with particularity, setting forth "the particular words complained of," though "their application to the plaintiff may be stated generally." N.Y. C.P.L.R. § 3016(a). In federal court, however, the complaint is subject to the usual standards set forth by the Federal Rules of Civil Procedure and Twombly and Iqbal. "While the federal rules do not require the particularized pleading requirements set forth in New York's C.P.L.R. section 3016, Rule 8 [of the Federal Rules of Civil Procedure] still requires that each pleading be specific enough to afford defendant sufficient notice of the communications complained of to enable him to defend himself." Gristede's Foods, Inc. v. Poospatuck (Unkechauge) Nation, No. 06 Civ. 1260, 2009 WL 4547792, at *8-9 (E.D.N.Y. Dec. 1, 2009) (citations omitted); see also Thai v. Cayre Group, Ltd., 726 F. Supp. 2d 323, 329 (S.D.N.Y. 2010) ("A defamation claim is only sufficient if it adequately identifies the purported communication, and an indication of who made the communication, when it was made, and to whom it was communicated." (quoting Gargiulo, 651 F. Supp. 2d at 192 (quotation marks omitted))).

"Whether particular words are defamatory presents a legal question to be resolved by the court[s] in the first instance." Celle, 209 F.3d at 177 (quoting Aronson v. Wiersma, 65 N.Y.2d 592, 493 N.Y.S.2d 1006, 483 N.E.2d 1138, 1139 (1985)). As the Second Circuit has explained, it is ultimately "the responsibility of the jury to determine whether the plaintiff has actually been defamed; however, a threshold issue for resolution by the court is whether the statement alleged to have caused plaintiff an injury is reasonably susceptible to the defamatory meaning imputed to it." Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997) (citing James v. Gannett Co., 40 N.Y.2d 415, 386 N.Y.S.2d 871, 353 N.E.2d 834, 837-38 (1976)) (internal citation omitted). Words that are not "reasonably susceptible of defamatory meaning" are not actionable. Qureshi v. St. Barnabas Hosp. Ctr., 430 F. Supp. 2d 279, 287 (S.D.N.Y. 2006) (citation omitted).

Allegedly defamatory statements should be construed "as they would be commonly understood . . . in the context of their publication." Levin, 119 F.3d at 195 (citing Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373, 625 N.Y.S.2d 477, 649 N.E.2d 825, 829 (1995)). "Challenged statements are not to be read in isolation, but must be perused as the average reader would against the 'whole apparent scope and intent' of the writing." Celle, 209 F.3d at 177 (quoting November v. Time Inc., 13 N.Y.2d 175, 244 N.Y.S.2d 309, 194 N.E.2d 126, 128 (1963)). "Allegedly defamatory statements should be construed not with the close precision expected from lawyers and judges but as they would be read and understood by the public to which they are addressed." Krepps v. Reiner, 588 F. Supp. 2d 471, 484 (S.D.N.Y. 2008) (citation omitted). The New York Court of Appeals instructs courts not to "strain to interpret [] writings in their mildest and most inoffensive sense to hold them nonlibelous." November, 13 N.Y.2d 175, 244 N.Y.S.2d 309, 194 N.E.2d at 128 (citation and quotation marks omitted). At the same time, a court should not "render statements actionable by giving them a 'strained or artificial construction.'" Qureshi, 430 F. Supp. 2d at 287 (quoting Dillon v. City of New York, 261 A.D.2d 34, 704 N.Y.S.2d 1, 5 (1st Dep't 1999)); see also Krepps, 588 F. Supp. 2d at 484 ("[I]t is equally clear that courts should not strain to interpret statements as defamatory."). III. Discussion

This case is somewhat more complex than a typical defamation claim. Rather than a single statement, or a single allegedly defamatory implication from a group of statements, this case concerns approximately two dozen different passages (some of which are several paragraphs long) in a 16,000-word article. Defendants raise a variety of arguments as to why the claims arising from each of the passages should be dismissed at the pleading stage.

As the parties acknowledged at oral argument, the Complaint does not necessarily rise or fall in its entirety. If the Court finds that some of the statements are actionable but others are not, then the Court may dismiss the claims based on the non-actionable statements and allow the claims based on the actionable statements to go forward. The parties agreed that discovery would then proceed for any statements held to be actionable, but not for any statements that fail to support a claim.

The New York Court of Appeals has explained that there is "particular value" in resolving defamation claims at the pleading stage, "so as not to protract litigation through discovery and trial and thereby chill the exercise of constitutionally protected freedoms." Armstrong, 85 N.Y.2d 373, 625 N.Y.S.2d 477, 649 N.E.2d at 828.*fn5

Thus, as courts typically do in such cases, the Court will evaluate each allegedly defamatory statement (or set of statements) and determine whether it is actionable, granting dismissal of claims based on non-actionable statements and denying dismissal with respect to claims based on actionable statements. See, e.g., Treppel v. Biovail Corp., No. 03 Civ. 3002, 2004 WL 2339759 (S.D.N.Y. Oct. 15, 2004) (granting motion to dismiss claims with respect to eight out of eleven allegedly defamatory statements).

Defendants make several overlapping arguments that each of the allegedly defamatory statements is not actionable as a matter of law. Specifically, they argue that the allegedly defamatory statements (1) are not susceptible of a defamatory connotation or are substantially true; (2) constitute non-actionable statements of opinion; (3) are based on unchallenged statements of fact and are not actionable as a result of any defamatory implication; and/or (4) are protected as fair and true reports of judicial proceedings. The Court addresses each set of arguments separately.

A. Statements That Are Not Susceptible of a Defamatory Implication

Two of the allegedly defamatory statements are conceded to be substantially true based on the allegations of the complaint, and in any event are not "reasonably susceptible of defamatory meaning." Qureshi, 430 F. Supp. 2d at 287. Accordingly, Defendants' motion to dismiss claims based on those statements is granted.

Under New York law, it is "fundamental that truth is an absolute, unqualified defense to a civil defamation action." Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 301 (2d Cir. 1986) (citation omitted). If an allegedly defamatory statement is "substantially true," a claim of libel is "legally insufficient and . . . should [be] dismissed." Id. "Substantial truth turns on the understanding of the 'average reader.'" Meloff v. New York Life Ins. Co., 240 F.3d 138, 146 (2d Cir. 2001). New York courts hold that "[a] statement is substantially true if the statement would not 'have a different effect on the mind of the reader from that which the pleaded truth would have produced.'" Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 366 (S.D.N.Y. 1998) (quoting Fleckenstein v. Friedman, 266 N.Y. 19, 193 N.E. 537, 538 (1934)); see also id. ("Thus, under New York law, 'it is not necessary to demonstrate complete accuracy to defeat a charge of libel. It is only necessary that the gist or substance of the challenged statements be true.'" (quoting Printers II, Inc. v. Professionals Publishing, Inc., 784 F.2d 141, 146 (2d Cir. 1986)); Guccione, 800 F.3d at 301 (stating that "the substantial truth defense permits a certain amount of leeway as to accuracy").

Thus, the following statements identified in the Complaint are not actionable:

* The description of Biro as having "pioneered a radical approach to authenticating pictures," which the Complaint alleges is "false and misleading" because "[t]here is nothing radical about fingerprints, not even on artworks, and plaintiff is not the first person who has looked for fingerprints to provide evidence to assist in the attribution of works of art." (Comp. ¶ 57-58.)

The Complaint itself contrasts the "more scientific means" of fingerprint authentication with "traditional methods for attribution of works of art," and concedes that the use of fingerprint analysis in art authentication is an "emerging field." (Comp. ¶ 8, 11.) This alleged truth would not have a "different effect on the mind of the reader," Jewell, 23 F. Supp. 2d at 366, than the idea that fingerprint authentication is a "radical approach." In any event, whether fingerprint authentication is "radical" or merely "emerging" is subjective, and not capable of being proven true or false. Finally, describing the approach as "radical" does not have any tendency to expose Biro to "public contempt, ridicule, aversion or disgrace." Qureshi, 430 F. Supp. 2d at 287.*fn6

* The statement, in the context of the description of the "Provenance" business plan, that "Biro had authenticated" the Teri Horton painting, which the complaint alleges is a "factual error," because "[i]n fact, plaintiff never authenticated Horton's painting." (Comp. ¶ 127.)

The Complaint alleges that "[a]uthentication is by its very nature a complex and multidisciplinary process, and seldom provides definitive answers. Biro presented the evidence in favor of the attribution to Jackson Pollock, but did not draw a firm conclusion." (Comp. ¶ 128.) Again, in the context of an article that has as its central theme the uncertainty inherent in art authentication, the statement that Biro "authenticated" the Horton painting, and the alleged truth, as set forth in the Complaint, would not have a "different effect on the mind" of the average reader. And, in any event, a statement that Biro authenticated the painting is not reasonably susceptible of a defamatory connotation.

B. Non-actionable Expressions of Opinion

Defendants argue that many of the alleged defamatory statements are not actionable because they are expressions of opinion, not statements of fact.

1. Applicable Law

"Under both New York and federal law, statements of pure opinion are not actionable as defamation." Qureshi, 430 F. Supp. 2d at 288 (citing Gross v. New York Times Co., 82 N.Y.2d 146, 603 N.Y.S.2d 813, 623 N.E.2d 1163, 1166 (1993)); see also Levin, 119 F.3d at 196 ("[E]xpressions of opinion are not actionable . . . ."); Mann v. Abel, 10 N.Y.3d 271, 856 N.Y.S.2d 31, 885 N.E.2d 884, 885-86 (2008) ("Expressions of opinion, as opposed to assertions of fact, are deemed privileged and no matter how offensive, cannot be the subject of an action for defamation.").*fn7 This is because a statement of opinion is not an assertion of fact that can be proved false, and "[a]n assertion that cannot be proved false cannot be held libelous." Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir. 1977); see also Brian,87 N.Y.2d 46, 637 N.Y.S.2d 347, 660 N.E.2d at 1129 ("Since falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being proven false, we have consistently held that a libel action cannot be maintained unless it is premised on public assertions of fact."); Milkovich, 497 U.S. at 20 ("[A] statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection."). Thus, an expression of pure opinion is protected "however unreasonable the opinion or vituperous the expressing of it may be." Hotchner, 551 F.2d at 913 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974); Buckley v. Littel, 539 F.2d 882, 888 (2d Cir. 1976)).

Whether a statement is one of fact or opinion is a question of law for the court. Mann, 10 N.Y.3d 271, 856 N.Y.S.2d 31, 885 N.E.2d at 885. As many courts have observed, the "seemingly simple" proposition that expressions of opinion are protected "belies an often complicated task of distinguishing between potentially actionable statements of fact and non-actionable expressions of opinion." Qureshi, 430 F. Supp. 2d at 288; see also Brian, 87 N.Y.2d 46, 637 N.Y.S.2d 347, 660 N.E.2d at 1129 ("Distinguishing between assertions of fact and non-actionable expressions of opinion has often proved a difficult task."). New York courts look principally to three factors to make this determination: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.

Id. (quoting Gross, 82 N.Y.2d 146, 603 N.Y.S.2d 813, 623 N.E.2d at 1166). "When the defendant's statements, read in context, are readily understood as conjecture, hypothesis, or speculation, this signals the reader that what is said is opinion, and not fact." Levin, 199 F.3d at 197 (citation omitted). Often, statements of "rhetorical hyperbole" or "imaginative expression" are held not actionable, because they "cannot reasonably be interpreted as stating actual facts" that could be proved false. Milkovich, 497 U.S. at 20, 25; see also Treppel, 2004 WL 2339759, at *12 (stating that "an opinion may be offered with such excessive language that a reasonable audience may not fairly conclude that the opinion has any basis in fact" and noting that the Supreme Court has "afforded constitutional protection to the type of speech often characterized as 'rhetorical hyperbole,' 'parody,' 'loose,' or 'figurative'" (citing Milkovich, 497 U.S. at 16-17)).

A statement of "pure opinion" is one which is either "accompanied by a recitation of the facts upon which it is based" or "does not imply that it is based upon undisclosed facts." Steinhilber, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d at 552. However, if a statement "impl[ies] that the speaker's opinion is based on the speaker's knowledge of facts that are not disclosed to the reader," then it may be actionable. Levin, 119 F.3d at 197. Such statements may be actionable "not because they convey 'false opinions' but rather because a reasonable listener or reader would infer that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the person toward whom the communication is directed." Gross, 82 N.Y.2d 146, 603 N.Y.S.2d 813, 623 N.E.2d at 1168 (quoting Steinhilber,

68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d at 553) (quotation marks and brackets omitted); see also Levin, 119 F.3d at 196 (noting that the Supreme Court has "explained that the United States Constitution offers no wholesale protection for so-called 'expressions of opinion' if those expressions imply assertions of objective fact" (citing Milkovich, 497 U.S. at 18)). In other words, a statement of opinion that is based on undisclosed facts is potentially actionable because it carries with it an implicit statement of those facts. On the other hand, "a proffered hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as conjecture." Gross, 82 N.Y.2d 146, 603 N.Y.S.2d 813, 623 N.E.2d at 1168.

2. Application of Law to Facts

Defendants argue that three of the allegedly defamatory passages are privileged as pure statements of opinion. The Court agrees with Defendants as to two of them and disagrees as to one of them.

Each of these passages contains quotations from third parties expressing negative views of Biro. It is well settled that Defendants cannot escape liability simply because they are conveying someone else's defamatory statements without adopting those viewpoints as their own. The Second Circuit has expressly embraced the "widely recognized" rule that "one who republishes a libel is subject to liability just as if he had published it originally, even though he attributes the libelous statement to the original publisher, and even though he expressly disavows the truth of the statement." Cianci v. New Times Pub. Co., 639 F.2d 54, 60-61 (2d Cir. 1980) (citations omitted); see also Weiner, 74 N.Y.2d 586, 550 N.Y.S.2d 251, 549 N.E.2d at 456, (rejecting "privilege to repeat the statements of third parties so long as no endorsement was given").

Biro alleges that the following passage is false and defamatory:

Elizabeth Lipsz, a Montreal businesswoman who had once been close to Biro, and who won a lawsuit against him for unpaid loans, described him to me as a "classic con man." Her lawyer told me that Biro "was so convincing. He was very suave, soft-spoken, but after a while you catch him in different lies and you realize that the guy is a phony." (Article at 13-14.)*fn8

Defendants argue that the fact that the statements were made by "people whose bias against Biro would plainly signal to a reasonable reader that they were speaking from a subjective point of view." (Defs. Mem. at 1819.) See Brian, 87 N.Y.2d 46, 637 N.Y.S.2d 347, 660 N.E.2d at 1131 (noting that fact that author of article disclosed that he had been the attorney for the party that had been in conflict with the subject of the article "signal[ed] that he was not a disinterested observer"). Defendants also cite decisions holding that descriptions of an individual as a "con artist" are not actionable because the term "con artist" is a "vague, indefinite, ambiguous statement . . . incapable of being objectively proven false." Huggins v. NBC, 1996 WL 763337, at *3 (N.Y. Sup. Ct. Feb. 7, 1996) (characterizing term as "loose [and] figurative," and did not "refer to verifiable acts of criminal behavior"); see also Foley v. CBS Broadcasting, Inc., 28 Misc. 3d 1227(A), 2006 WL 6619947, at *4 (N.Y. Sup. Ct. Sept. 13, 2006) (holding that description of plaintiff store owner as "con artist" who had been "scamming customers for years" was not actionable when statements were broadcast in context of segments "which featured customers complaining that Foley either failed to deliver goods or delivered defective goods").

Here, although the context and language used suggest that Lipsz and her lawyer were stating their subjective opinions of Biro, the statements imply the existence of undisclosed facts on which those opinions were based. Cf. Foley, 2006 WL 6619947, at *4 (noting that there was "no suggestion in the broadcasts that there were additional undisclosed facts on which the assertion that Foley was a 'con artist' was based"). Merely failing to pay a debt does not automatically make someone a "classic con man." Lipsz's statement, along with her lawyer's description of "catch[ing Biro] in different lies" and "realiz[ing] the guy is a phony" suggest that their opinions are based upon additional facts beyond the stated fact that Biro was involved in a lawsuit concerning unpaid loans. It is possible that their opinion is based upon facts that are elsewhere fully disclosed in the Article, but this is not clear from the context of their statements. And even if the term "con man" is not specific enough to constitute an accusation of "verifiable acts of criminal behavior," Huggins, 1996 WL 763337, at *3, it cannot be doubted that, in the context of the Article, the statement is reasonably capable of a defamatory meaning. Thus, Biro's claim for defamation based upon this passage is not dismissed.

On the other hand, the statement from Lipsz's lawyer, in regard to the fact that Biro filed for bankruptcy and never paid many of the judgments against him, that Biro "oiled his way out of that whole thing . . . [and] got away scot-free," is protected as an expression of opinion. (Article at 19.) Biro alleges that the statement is "false and defamatory and scurrilous" in its use of those words. (Comp. ¶ 115.) Biro further alleges that "[i]t is accurate to state that plaintiff filed for bankruptcy in 1993 and was discharged. However, in the early 1990s the art market in Montreal suffered a serious recession, major art galleries closed, and some moved away because of it. Plaintiff was among the victims of that recession." (Comp. ¶ 116.) Even if Biro's allegation is true, in the context of the passage, it is clear that the statement reflects Lipsz's lawyer's opinion of the fairness of Biro's bankruptcy discharge, and there is no suggestion that the statement was based upon other, undisclosed facts. Moreover, assertions that Biro "oiled his way" out of something, or got away "scot-free," do not carry a precise meaning and are not capable of being proven true or false. Thus, Biro's claim based on this passage is dismissed.

Similarly, Defendants argue that the following excerpt of the Article is not actionable:

Biro previously had been suspected of creating an investment scheme around a seemingly precious object, with the promise that it would eventually reap huge profits. . . . Lafferty's longtime business partner, Allan Aitken, told me that he believed that "Biro was either a shyster or a con man, and had found in Lafferty an easy mark." (Article at 21-22.) Biro alleges simply that this statement is "false and defamatory." (Comp. ¶ 121.) He alleges that, "[i]n fact, it was Lafferty who proposed the venture, not plaintiff, and it was Lafferty who prepared and submitted a business plan, not plaintiff." (Comp. ¶ 122.)

This allegation refers to the extensive description in the Article of the "Perinoscope" incident, where Biro and his brother claimed to have found a note embedded in the frame of a painting suggesting that the painting was by Raphael's disciple, Perino del Vaga. A Harvard research team concluded that the note was not authentic and the Article quotes one scholar who concluded that the work was likely an elaborate hoax.

First, the use of the terms "shyster," "con man," and finding an "easy mark" is the type of "rhetorical hyperbole" and "imaginative expression" that is typically understood as a statement of opinion. Milkovich, 497 U.S. at 20. But more fundamentally, outside of the single, peripheral detail regarding who initially proposed the venture and submitted the business plan, Biro does not allege that any aspect of the description of the underlying events involving Lafferty is false. "[W]here the plaintiff only asserts that the opinions are false, and does not challenge the veracity of the underlying facts, the plaintiff may not sustain a libel action." Jewell, 23 F. Supp. 2d at 377. And in the context of these unchallenged facts, a reasonable reader would understand Aitken's description of Biro as a statement of his opinion, based upon the incidents fully described in the Article. Unlike the Lipsz statements, there is no suggestion that Aitken was relying on any other undisclosed facts in reaching his opinion. Steinhilber, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d at 553 ("The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they are spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion."). Thus, the claim based on this statement is dismissed as a non-actionable expression of opinion.

C. Claims for Defamation by Implication

Many of Biro's allegations are based not on a defamatory connotation from statements in the Article that are alleged to be expressly false, but rather on an alleged defamatory implication that can be derived from the juxtaposition of certain statements with the omission of other allegedly material facts. "'Defamation by implication' is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements." Armstrong, 85 N.Y.2d 373, 625 N.Y.S.2d 477, 649 N.E.2d at 829. A defamatory implication may be based on "a combination of individual statements which in themselves may not be defamatory," but which "might lead the reader to draw an inference that is damaging to the plaintiff." Herbert v. Lando, 781 F.2d 298, 307 (2d Cir. 1986).

Although some jurisdictions refuse to recognize a claim for a defamatory implication where the statements giving rise to the implication are all true,*fn9 New York courts have acknowledged the possibility that there may be a claim based on a defamatory implication. The Second Circuit, in dicta, has suggested the following example of a set of statements that could be held to be defamatory by implication:

If, for example, a newspaper account of a rash of neighborhood thefts also reported that a public figure had recently moved into the neighborhood, purchased tools commonly used in burglaries, and had been seen near a number of homes where burglaries had occurred, a reader would be led to believe that the individual described had committed the crimes. Such a deductive inference might well be actionable if there is proof the article was published with actual malice. While each individual statement alone might be literally accurate, in the aggregate they give rise to a false and defamatory inference.

Id. at 307 n.4 (citations omitted).

1. Applicable Law

a. Author Must Adopt Implication

Neither the New York Court of Appeals nor the Second Circuit has established the standard to be applied on a motion to dismiss a defamatory implication claim. See Levin, 119 F.3d at 196 ("We neither consider nor decide the question of what is the proper standard to be applied to a motion to dismiss a claim of 'defamation by implication.'"); Armstrong, 85 N.Y.2d at 381-82, 625 N.Y.S.2d at 481-82, 649 N.E.2d at 829-30 ("The choice of an appropriate test for claims of defamation by implication must therefore await another day.").

Several other courts of appeals have held that in order to state a claim for a defamatory implication, the "defamatory implication must be present in the plain and natural meaning of the words used," and "[t]he language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference." Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092-93 (4th Cir. 1993) (citing White v. Fraternal Order of Police, 909 F.2d 512, 520 (D.C. Cir. 1990) ("[I]f a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory inference can reasonably be drawn, the libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that [defamatory] meaning.").

These decisions also express skepticism of a claim for defamation based on the omission of facts that may have cast the plaintiff in a different, more positive light, but would not otherwise render the expressed statements untrue. In Janklow v. Newsweek, 759 F.2d 644 (8th Cir. 1985), the Eighth Circuit held that an article about a 14-year old rape allegation against the plaintiff was not actionable even though the article omitted the facts that (1) the plaintiff had passed a lie detector test; (2) the alleged victim had been declared "untestable" because of her emotional display during her polygraph exam; (3) a medical examination showed no signs of rape; and (4) numerous federal authorities had called the rape allegations unfounded. Id. at 647-48. The court stated:

We note that the law does not recognize libel by omission as a tort. Libel, by definition, consists of the publication of a false and unprivileged fact. Thus, liability may be imposed in a libel case only for an assertion or implication of fact that is false and unprivileged, and not for mere omission of a relevant fact. For this reason, Newsweek could not be liable solely for its omissions, without regard to whether a material assertion was thereby made untrue.

Id. at 648.

The court also refused to find liability based on the fact that "the article could be read to imply that [the plaintiff] was actually guilty of the alleged rape." Id. at 649. "Because the publication of a materially true statement is constitutional protected, and because the article in question cannot be read to imply that Newsweek espoused the validity of the rape allegation," there could be no liability for defamation by implication. Id. (internal citations omitted). The en banc court affirmed the decision, explaining:

Courts must be slow to intrude into the area of editorial judgment, not only with respect to choices of words, but also with respect to inclusions in or omissions from news stories. Accounts of past events are always selective, and under the First Amendment the decision of what to select must almost always be left to writers and editors. It is not the business of government.

Janklow v. Newsweek, 788 F.2d 1300, 1306 (8th Cir. 1986).

New York courts have cited this line of cases in requiring that for claims of defamation "not based on the factual statements expressly contained in the article, but rather based on the impressions and implications of the concededly accurate facts," a plaintiff must show that the

language "affirmatively suggest[s] that the author intends or endorses" the defamatory inference. Rappaport v. VV Pub. Corp., 163 Misc. 2d 1, 7-8, 618 N.Y.S.2d 746 (N.Y. Sup. Ct. 1994) (quoting Chapin, 993 F.2d at 1092-93, and noting "significant obstacles" to maintaining defamatory implication claims), aff'd, 223 A.D.2d 515, 637 N.Y.S.2d 109 (1st Dep't 1996). Courts in this District have also held that a plaintiff alleging defamation by implication must "show that Defendants affirmatively intended such implication." Vinas v. Chubb Corp., 499 F. Supp. 2d 427, 437 (S.D.N.Y. 2007); see also Chaiken v. VV Publishing Corp., 907 F. Supp. 689, 698 (S.D.N.Y. 1995) (citing Chapin, 993 F.2d at 1093).

New York courts have also been hesitant to find defamation based on the omission of facts, unless the omitted facts would materially change the meaning of the statements that are expressed. The Appellate Division has held that [t]o hold that a possible omission . . . by a reporter may be deemed defamatory would place upon the press the onerous and unreasonable burden of having to ascertain, whenever a news story is published, if something might conceivably have been left out which could be subject to misconception. . . . Whether or not a particular article constitutes unbalanced reporting is essentially a matter involving editorial judgment and is not actionable.

Sprecher v. Dow Jones & Co., Inc., 450 N.Y.S.2d 330, 88 A.D.2d 550, 551 (1st Dep't 1982), aff'd, 58 N.Y.2d 862, 447 N.E.2d 75 (1983). Thus, the "omission of relatively minor details in an otherwise basically accurate account is not actionable." Id. at 551-52 (quoting Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, 1308 (1977)); see also Krepps,588 F. Supp. 2d at 483-84 ("[W]here a plaintiff fails to identify any misleading omissions or factual suggestions, dismissal is appropriate.") (citing Oluwo v. Hallum, 16 Misc.3d 1139(A), 851 N.Y.S.2d 59 (Table), 2007 WL 2701286, at *3 (N.Y. Sup. Ct. 2007). Cf. Church of Scientology Int'l v. Behar, 238 F.3d 168, 175 (2d Cir. 2001) (holding, in context of determination of whether plaintiff had shown malice, that "minor omission" in investigative story would not support "inference of purposeful avoidance of the truth" where omissions were "insignificant when viewed against the backdrop of [the] investigation as a whole").

In light of these authorities, the Court joins the other courts applying New York law and adopts the Fourth Circuit's approach to defamatory implication claims in Chapin, 993 F.2d at 1092-93. Thus, where a plaintiff asserts a defamation claim based not on any alleged falsity of the statements themselves, but on an alleged defamatory implication that could be derived from the unchallenged facts, the Court will require an "especially rigorous showing" that (1) the language may be reasonably read to impart the false innuendo, and (2) the author intends or endorses the inference. Id. at 1093. The alleged innuendo "may not enlarge upon the meaning of words so as to convey a meaning that is not expressed." Tracy v. Newsday, 5 N.Y.2d 134, 155 N.E.2d 853, 855 (1959). To the extent that Biro alleges that the implication arises due to the omission of certain facts, the Court will look to whether such omission would materially change the alleged implication or render untrue what is otherwise unchallenged.

Thus, as applied to the hypothetical in Herbert v. Lando, a report that a public figure recently moved into town and was seen purchasing burglary tools may, in the context of a report about a rash of neighborhood thefts, be actionable because it conveys a defamatory implication that the public figure was the culprit. 781 F.2d at 307 n.4. However, the report would be potentially actionable only if it can be shown that the author of the article intended or endorsed that implication. This will often require an examination of the statements in the context of the article as a whole. It is possible that the article reported on several unrelated recent events of local interest. Perhaps the statement about the public figure moving into town appeared toward the beginning of the article, in a section about recent arrivals to town, and the statement about the rash of thefts appeared in a different section of the article that recounts recent criminal activity in town. Although a reader could conceivably infer from the reporting of the two sets of facts that the public figure was the thief, the article would likely not be ...

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