August 16, 2019
- Whether the trial court properly dismissed the plaintiff’s claims for defamation at the motion to dismiss stage.
The plaintiff received an ATM-related patent in 2005. He subsequently formed a company to serve as the exclusive licenser of his patent. The plaintiff began offering patent licenses and bringing infringement litigation against various entities. In the wake of the plaintiff’s successful infringement litigation and licensing revenues, the plaintiff alleged that the defendants made statements referring to the plaintiff as a “patent troll” as well as characterizing the plaintiff’s licensing efforts as extortive or being a “shakedown.” The trial court granted the defendants’ motion to dismiss because the subject statements were not actionable as they were only expressions of opinion. With regard to statements referring to the plaintiff’s activity as extortive or being a shakedown, the trial court found them to be rhetorical hyperbole and not assertions of fact. The plaintiff appealed the trial court’s order dismissing the defamation claims against the defendants arguing that the trial court erred because it could not determine at the motion to dismiss stage that the statements were nonactionable.
The Supreme Court affirmed and held that the defendants’ statement that the plaintiff was a patent troll was not actionable because it was merely an opinion based upon disclosed facts. In doing so, the Supreme Court determined that although the term “patent troll” is generally intended to be disparaging, its meaning is sufficiently elusive and “quintessentially subject.” The Supreme Court held that the statement accusing the plaintiff of being “a well-known patent troll” was one of opinion rather than fact because “patent troll” is a statement with a definition that itself does not have a precise meaning such that it is capable of verification and cannot be objectively verified. Furthermore, the Supreme Court found that the statements did not imply the existence of undisclosed defamatory facts because the facts about the plaintiff upon which the statements were based were clearly stated by the defendants.
The Supreme Court also determined that statements referring to the plaintiff’s actions as extortive or being a “shakedown” were mere rhetorical hyperbole because no reasonable listener would understand the reference to “extortion” or “shakedown” to amount to an accusation that the plaintiff committed a literal crime. Similarly, statements that the plaintiff’s efforts cost it only the postage and paper that the licensing demand letter was written on was also mere rhetorical hyperbole because no reasonable listener would have understood that the plaintiff’s efforts were in fact virtually costless.
Shaheen & Gordon, P.A., of Concord (Steve M. Gordon, Timothy J. McLaughlin, and Stephanie K. Annunziata on the brief, and Mr. Gordon orally), for the plaintiffs. Devine, Millimet & Branch, P.A. of Manchester (Jonathan Shirley and Joshua M. Wyatt on the brief, and Mr. Wyatt orally, for the defendant American Bankers Association. Litchfield Cavo, LLP, of Lynnfield, Massachusetts (Mark A. Darling and Bethany P. Minich on the brief, and Mr. Darling orally), for the defendant Credit Union National Association. Desmarais Law Group, PLLC, of Manchester (Debra L. Mayotte on the brief and orally), for the defendants Robert H. Stier and Pierce Atwood, LLP. Gilles R. Bissonnette, of Concord, on the brief, for American Civil Liberties Union of New Hampshire and Electronic Frontier Foundation, as amicu curiae.