Netscout Systems, Inc. v. Gartner, Inc. ( 2020 )

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NETSCOUT SYSTEMS, INC. v. GARTNER, INC.
(SC 20079)
Robinson, C. J., and Palmer, McDonald, Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff, which develops and sells information technology products,
sought to recover damages for the defendant’s alleged violation of the
Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) and
for defamation in connection with certain allegedly false statements
that the defendant had published in a market research report. The
defendant provides consulting services to vendors of information tech-
nology and publishes market research reports in which it rates vendors,
including those that purchase its services. The defendant claims in its
marketing materials that the opinions expressed in its reports are objec-
tive and impartial. The defendant published a report in which it rated
vendors, including the plaintiff, in the network performance monitoring
and diagnostics market, and, although the plaintiff previously had
accepted the defendant’s invitation to participate in the report’s evalua-
tion process, the plaintiff had declined to purchase any consulting ser-
vices from the defendant. The report included a graphical ranking of
vendors, which was presented in the form of a square divided into four
quadrants, and vendors were plotted along the axes of the graph on
the basis of the defendant’s application of certain weighted criteria,
including the subjective evaluations of the vendors’ customers. On the
basis of its placement in the upper left quadrant of the graph, the plaintiff
was designated a ‘‘challenger,’’ whereas vendors placed in the upper
right quadrant received the more desirable designation of ‘‘leader.’’ The
report defined the term ‘‘challenger’’ in relevant part as a vendor that
is currently struggling to deal with new technical demands and rising
expectations, whereas a ‘‘leader’’ is defined in relevant part as having
comprehensive portfolios and the ability to handle multiple application
and technology types. The report also included three specific ‘‘cautions’’
about the plaintiff and its limitations in its market. The plaintiff alleged
that the statements in the report were false and defamatory, and that
the defendant had engaged in a pay to play scheme, pursuant to which
it rated vendors in a biased manner, on the basis of the amount of
consulting services each vendor purchased from the defendant. The
defendant moved for summary judgment, claiming that, because the
statements in the report constituted protected speech, the plaintiff’s
claims were barred by the first amendment to the United States constitu-
tion. Although the trial court concluded that the defendant’s designation
of the plaintiff as a challenger rather than as a leader constituted nonac-
tionable opinion, it also determined that certain statements contained
in the definition of the term ‘‘challenger’’ and in the cautions specific
to the defendant either were factual or implied, undisclosed facts. With
respect to those statements, the court nevertheless concluded that the
plaintiff’s claims were barred by the first amendment because the defen-
dant was a limited purpose public figure, the defendant’s statements
were on a matter of public concern, and the plaintiff failed to prove by
clear and convincing evidence that the defendant had made the state-
ments with actual malice. The court also found that there was no evi-
dence that the defendant’s placement of the various vendors in the
quadrants on the graph was correlated to the amount of consulting
services the vendors had purchased from the defendant. Accordingly,
the trial court granted the defendant’s motion for summary judgment
on both the defamation count and the CUTPA count and rendered
judgment thereon, from which the plaintiff appealed. Held that the trial
court properly granted the defendant’s motion for summary judgment,
this court having concluded that all of the defendant’s statements were
nonactionable expressions of opinion, there was insufficient evidence
to create a genuine issue of material fact regarding the truth of the
defendant’s claims of objectivity and impartiality, and the plaintiff failed
to present sufficient evidence to support its pay to play claim: a reason-
able person could construe the defendant’s designation of the plaintiff
as a challenger only to be an expression of opinion, as ratings of products
and services are inherently subjective and the criteria used by the defen-
dant in ranking the vendors, including the subjective evaluations of the
vendors’ own customers, and the weight assigned to those criteria could
not be proven true or false; moreover, contrary to the conclusion of the
trial court, this court concluded that, in light of the context in which
they were made, the statements contained in the definition of the term
‘‘challenger’’ and in the cautions about the plaintiff were neither factual
nor implied, defamatory statements of fact, as the parties were operating
in a sophisticated market and their customers understood that the rating
of products and services is based on inherently subjective evaluations,
the report expressly stated that it consisted of the defendant’s own
opinions that should not be construed as statements of fact, and the
language used in the definitions and cautions, which was highly technical
and employed terms of art specific to the plaintiff’s specific market,
was abstract, unquantifiable, and comparative, such that the statements
were insusceptible of being verified; furthermore, the fact that the defen-
dant had claimed in its marketing materials that the opinions presented
in its research reports are objective and impartial, in the absence of
evidence establishing that those claims of objectivity were false, did
not transform the nonactionable statements of opinion contained in the
report into express or implied, defamatory factual statements, as such
claims of objectivity, like puffery, are insusceptible of being proven true
or false and are unlikely to induce reliance in a reasonable person
viewing such statements.
Argued January 14, 2019—officially released January 21, 2020
Procedural History
Action to recover damages for, inter alia, violations
of the Connecticut Unfair Trade Practices Act, and for
other relief, brought to the Superior Court in the judicial
district of Stamford-Norwalk, where the court, Lee, J.,
granted the defendant’s motion for summary judgment
and rendered judgment thereon, from which the plain-
tiff appealed. Affirmed.
Jason D. Frank, pro hac vice, with whom were Emily
E. Renshaw, pro hac vice, and, on the brief, James A.
Budinetz, Michael T. Ryan, Elizabeth G. Hays, pro hac
vice, and Michael D. Blanchard, for the appellant
(plaintiff).
Derek L. Shaffer, pro hac vice, with whom were
Andrew M. Zeitlin and, on the brief, Diane C. Polletta,
John J. DiMarco, Robert L. Wyld, Patrick M. Fahey,
Michael D. Bonanno, pro hac vice, Kathleen M. Sulli-
van, pro hac vice, and Robert L. Raskopf, pro hac vice,
for the appellee (defendant).
Michelle M. Seery and Eugene Volokh, pro hac vice,
filed a brief for the Reporters Committee for Freedom
of the Press as amicus curiae.
Jennifer M. DelMonico and Proloy K. Das filed a
brief for the Connecticut Business and Industry Associ-
ation as amicus curiae.
Opinion
ECKER, J. The plaintiff, NetScout Systems, Inc., is
in the business of developing and selling information
technology products that allow its customers to man-
age, monitor, diagnose and service their computer net-
works. The defendant, Gartner, Inc., publishes research
reports in which it rates vendors, such as the plaintiff,
that sell and service various forms of information tech-
nology. The defendant also sells consulting services to
some of the vendors that it rates. In 2014, the defendant
issued a research report (2014 report), in which it
ranked the plaintiff lower than some of its competitors
and made critical comments about the plaintiff. There-
after, the plaintiff brought this action alleging that the
defendant had engaged in a ‘‘pay to play’’ scheme, in
which it rewarded vendors that purchased consulting
services from the defendant by giving them high ratings
in its research reports. The plaintiff claimed that the
alleged pay to play scheme constituted a false and
deceptive business practice under the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110a et seq., and that the 2014 report contained
false and defamatory statements about the plaintiff. The
defendant, in response, raised a defense premised on
the theory that its rankings and commentary were pro-
tected speech under the first amendment to the United
States constitution.1
The trial court agreed with the defendant. The court
concluded that the defendant’s 2014 report was consti-
tutionally protected speech, and the plaintiff, as a lim-
ited purpose public figure, was required to present evi-
dence that the defendant had acted with actual malice.
The court found that the plaintiff had failed to do so
and, accordingly, rendered summary judgment for the
defendant with respect to both claims on that ground.
The court also determined that the CUTPA claim failed
because the plaintiff had not presented evidence to
support the factual predicate for its pay to play allega-
tion due to its own expert witness’ inability to conclude
that the defendant’s ratings were correlated to the dollar
volume of consulting services that the vendors had pur-
chased from the defendant. The plaintiff appealed to
the Appellate Court, and we transferred the appeal to
this court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1.
We affirm the trial court’s judgment on the alternative
ground that all of the defendant’s statements regarding
the plaintiff were nonactionable expressions of opinion.
I
The record, viewed in the light most favorable to
the plaintiff, reveals the following relevant facts and
procedural history. The plaintiff, a Delaware corpora-
tion with its principal place of business in the town of
Westford, Massachusetts, is a prominent provider of
computer network performance monitoring products
and services. Its customers include numerous busi-
nesses around the world, including commercial banks,
airlines, financial service providers, and telecommuni-
cation service providers, as well as governmental agen-
cies and five branches of the United States military.
In 2014, the plaintiff had revenues of approximately
$400 million.
The defendant, a Delaware corporation with its prin-
cipal place of business in the city of Stamford, describes
itself as ‘‘ ‘the world’s leading information technology
research and advisory company.’ ’’ Among the defen-
dant’s research publications are its ‘‘Magic Quadrant’’
research reports, which are marketed to buyers of vari-
ous information technology products to assist them in
selecting a vendor. The centerpiece of each report is a
graphic rating of vendors called ‘‘the Magic Quadrant,’’
presented in the form of a square divided into quadrants.
The horizontal axis of the square depicts the vendors’
‘‘Completeness of Vision,’’ and the vertical axis depicts
their ‘‘Ability to Execute.’’ As illustrated by the graphic,
vendors with high ratings for both completeness of
vision and ability to execute are placed in the upper
right quadrant and are designated as ‘‘Leaders’’; those
with a high rating for ability to execute and a low rating
for completeness of vision are placed in the upper left
quadrant and are designated as ‘‘Challengers’’; those
with a high rating for completeness of vision and a low
rating for ability to execute are placed in the lower
right quadrant and are designated as ‘‘Visionaries’’; and
those with low ratings for both completeness of vision
and ability to execute are placed in the lower left quad-
rant and are designated as ‘‘Niche Players.’’
In addition to its research activities and associated
publications, the defendant provides consulting ser-
vices, which it calls ‘‘Strategic Advisory Services,’’ to
some vendors of information technology products.2 The
analysts who market and provide these consulting ser-
vices also are part of the team that determines the
placement of vendors on the Magic Quadrant graphic.
An analyst’s job performance is evaluated in part based
on the amount of revenue he or she generates, including
revenue from the sale of consulting services. The plain-
tiff’s pay to play allegations rest substantially on the
claim that the defendant’s vendor ratings were influ-
enced by the vendors’ willingness to use and pay for
the defendant’s consulting services.
In early 2013, Julie Dempster, an account executive
with the defendant assigned to the plaintiff’s account,
and Jonah Kowall, the defendant’s research vice presi-
dent for information technology operations manage-
ment, exchanged a number of e-mails regarding the
plaintiff. In an e-mail to Dempster dated January 4, 2013,
Kowall wrote, ‘‘I don’t understand why we don’t speak
to other people at [the plaintiff], nor do I understand
why [the plaintiff does not] attend shows, or do any
[strategic advisory services]. With [the plaintiff] in lots
of research and potentially a [Magic Quadrant report]
in 2013 I’m not quite understanding the relationship at
all. I normally go out of my way to make things happen,
and that’s not how it should be. [The plaintiff] ha[s]
potentially the worst [analyst relations/public relations]
and poor[est] marketing out of all the vendors I deal
with.’’ In a subsequent e-mail dated April 5, 2013, Kowall
wrote that the plaintiff did not ‘‘work with us like [its]
competitors do . . . and [it does not] engage us for
[strategic advisory services], which I think could help
[it] a lot more strategically.’’ In an e-mail to Kowall dated
July 8, 2013, Dempster wrote that ‘‘[t]he [strategic advi-
sory services] day is so key for us to gain exposure and
further licensing and engagements at [the plaintiff]!’’
On July 29, 2013, the defendant publicly announced
that it would be publishing a new Magic Quadrant
report—that is, the 2014 report—for the network per-
formance monitoring and diagnostics (NPMD) market.
By e-mail dated September 2, 2013, the defendant
invited the plaintiff to participate in the evaluation pro-
cess for inclusion in the 2014 report. The defendant
included in the e-mail a definition of the NPMD market,
the criteria for inclusion in the report, the evaluation
criteria, a research and process timeline, and a vendor
survey. The plaintiff accepted the invitation and
returned the completed survey to the defendant on
October 1, 2013.
On December 2, 2013, Kowall sent an e-mail to his
coworkers containing a draft of the Magic Quadrant
graphic to be included in the 2014 report, in which
the plaintiff was placed in the leaders quadrant. On
December 3, 2013, Rebecca Noriega, a senior analyst
and public relations manager with the plaintiff, sent an
e-mail to Dempster indicating that the plaintiff was not
going to participate in the ‘‘strategic advisory services
day’’ that Dempster had suggested. The next day, Kowall
circulated another e-mail containing a revised draft of
the Magic Quadrant graphic, in which the plaintiff was
placed directly on the line between the leaders quadrant
and the challengers quadrant. Kowall noted in the e-mail
that he ‘‘still think[s] [that one of the other vendors
placed in the challengers quadrant] and [the plaintiff]
should technically be leaders here, or at least on the
line (as [the plaintiff] is)’’ and observed that the plaintiff
and the other vendor may be ranked ‘‘too low’’ in their
ability to execute. On December 5, 2013, Kowall circu-
lated yet another e-mail with a second revised draft of
the Magic Quadrant graphic. Kowall indicated that he
had ‘‘tweaked some of the weightings to give us better
control.’’ As a result, the plaintiff was placed higher on
the vertical ability to execute axis but farther to the left
on the horizontal completeness of vision axis, thereby
situating the plaintiff deeper into the challengers quad-
rant. During the defendant’s internal peer review of the
draft 2014 report, several reviewers questioned why the
plaintiff was placed in the challengers quadrant instead
of in the leaders quadrant.
On January 9, 2014, the defendant provided the plain-
tiff with a draft of the 2014 report, in which the plaintiff
was placed in the challengers quadrant of the Magic
Quadrant graphic. The draft 2014 report also contained
narrative evaluations of the plaintiff’s ‘‘[s]trengths’’ and
three ‘‘[c]autions’’ concerning the plaintiff. On January
14, 2014, Noriega and the plaintiff’s vice president of
marketing, Steven Shalita, participated in a conference
call with Dempster and two other employees of the
defendant, Vivek Bhalla and Colin Fletcher. Shalita indi-
cated that the plaintiff was ‘‘struggling with the assess-
ment and some of the language’’ the draft 2014 report
contained. Bhalla and Fletcher attempted to explain
the reasons for the plaintiff’s placement and requested
written feedback from the plaintiff. On January 17, 2014,
Shalita sent an e-mail to Kowall, Fletcher, Bhalla and
Michele Severance, another employee of the defendant,
attaching a response to the draft 2014 report and
explaining in detail why the plaintiff believed that it
had been ranked too low on its completeness of vision.
In an e-mail to Shalita dated January 20, 2014, Kowall
indicated that the defendant needed ‘‘specific changes
to the text [of the draft 2014 report] BEFORE the call
today’’; (emphasis omitted); which would be the last
opportunity to discuss the plaintiff’s positioning in the
Magic Quadrant graphic and the report’s narrative pro-
viding certain cautions concerning the plaintiff. The
plaintiff did not suggest any specific changes to the
draft report, and the conference call never took place.
On January 22, 2014, the plaintiff’s president and chief
executive officer, Anil Singhal, sent a letter to the defen-
dant’s chief executive officer, Eugene A. Hall, in which
he wrote that he did not find it ‘‘amusing that [the
defendant] had the temerity to place [the plaintiff] in
the ‘[c]hallengers’ quadrant . . . .’’ Singhal also indi-
cated that, if the defendant published the 2014 report,
he would ‘‘vigorously contest [that] action through
whatever means available.’’ Over the next several days,
Singhal had a number of telephone conversations with
Nancy Erskine, the defendant’s ombudsman, in which
he reiterated that the plaintiff believed that the chal-
lengers ranking was unfair and discriminatory and that
the plaintiff wanted to be designated as the leading
vendor in the NPMD market or, in the alternative,
removed entirely from the 2014 report. Singhal also
indicated that, if the defendant refused to redesignate
the plaintiff as a leader or to remove it from the report,
the plaintiff would take legal action.
On March 6, 2014, the defendant published the final
2014 report. The plaintiff was placed in the challengers
quadrant. The report defined ‘‘[c]hallengers’’ as ‘‘those
with high market reach and large deployments. Once
leaders in the network performance monitoring market,
they are currently struggling to deal with new technical
demands and rising expectations. These established
NPMD vendors bring a substantial installed base, but
also architectures, feature sets and pricing structures
that require modernization (often in progress) to better
compete with those in the [l]eaders quadrant.’’ The
report also provided the following three ‘‘[c]autions’’
regarding the plaintiff: (1) ‘‘[the plaintiff] has a limited
ability to expand beyond its network management
heritage, which would be the next logical step (for
example, into [application performance monitoring] or
[information technology] operations analytics)’’; (2)
‘‘[o]ffering only a hardware-based deployment model
limits [the plaintiff’s] ability to address growing soft-
ware and [software as a service] solution demand’’;
and (3) ‘‘[the plaintiff] is perceived as a conservative
stalwart in the NPMD space, and lacks the reach and
mind share that many smaller competitors have.’’ In
separate marketing publications directed at purchasers
of the defendant’s research products, the defendant
represented that the opinions expressed in its reports
were ‘‘impartial,’’ ‘‘independent,’’ ‘‘objectiv[e],’’ and
‘‘unbiased.’’
The 2014 report was made available to 40,000 sub-
scribers to the defendant’s research services, more than
4000 of whom viewed the report. Vendors purchased
online reprints of the report that were viewed approxi-
mately 18,700 times, as well as 2000 paper reprints.
After the 2014 report was published, the plaintiff filed
this lawsuit. The two count complaint alleged, in the
first count, that the defendant had violated CUTPA by
engaging in a pay to play scheme in which vendors
purchase consulting services from the defendant in
exchange for high ratings in the defendant’s Magic
Quadrant report. In the second count, the plaintiff
alleged that the defendant had published false and
defamatory statements about the plaintiff in the 2014
report.
The defendant moved for summary judgment, claim-
ing that the first amendment barred both the defamation
claim and the CUTPA claim. It contended that, because
the 2014 report was on a matter of public concern
and the plaintiff is a limited purpose public figure, the
plaintiff was required to present evidence that the
defendant had acted with actual malice, such that its
statements about the plaintiff were ‘‘made with actual
knowledge that [they were] false or with reckless disre-
gard of whether [they were] false.’’ (Internal quotation
marks omitted.) Gleason v. Smolinski, 319 Conn. 394,
431, 125 A.3d 920 (2015). The plaintiff’s failure to pro-
duce any evidence of actual malice, the defendant
claimed, required the court to render summary judg-
ment in its favor. The defendant also argued that the
statements in the 2014 report were not factual asser-
tions but statements of opinion protected by the first
amendment. In addition, the defendant contended that
the CUTPA claim was barred because (1) there was no
evidence that the defendant’s business model departed
from standard business norms, (2) there was no evi-
dence that the plaintiff’s placement in the Magic Quad-
rant graphic was related to vendor payments to the
defendant for consulting services, (3) professional mal-
practice is nonactionable under CUTPA, and (4) there
was no evidence that the plaintiff suffered an ascertain-
able loss as a result of the 2014 report.
The trial court rendered summary judgment in the
defendant’s favor on both counts of the complaint. It
concluded that the defendant’s designation of the plain-
tiff as a challenger rather than a leader was nonaction-
able opinion. Although the court determined that cer-
tain statements in the defendant’s definition of a
challenger and in the three cautions regarding the plain-
tiff either were factual or implied undisclosed facts, it
agreed with the defendant that the plaintiff was a limited
purpose public figure and that the defendant’s state-
ments were on a matter of public concern, which meant
that the plaintiff, to overcome the defendant’s first
amendment protections, was required to present clear
and convincing evidence that the defendant had made
its statements with actual malice. After concluding that
the plaintiff had not done so, the court held that both
the defamation claim and the CUTPA claim were barred
by the first amendment. In addition, with respect to the
CUTPA claim, the court concluded that the plaintiff had
presented no credible evidence that it was damaged by
the defendant’s statements or that the placement of
vendors in the Magic Quadrant graphic was correlated
to the amount of consulting services that the respective
vendors had purchased from the defendant.
This appeal followed.3 The plaintiff contends that the
trial court erroneously concluded that the plaintiff was
required to prove actual malice on the basis of its incor-
rect determination that the plaintiff was a limited pur-
pose public figure and that the defendant’s statements
about the plaintiff in the 2014 report were on a matter
of public concern. The plaintiff also contends that, even
if the trial court correctly determined that the actual
malice standard applies, the court incorrectly deter-
mined that the plaintiff had not presented evidence
sufficient to create a genuine issue of material fact as
to that issue. Finally, the plaintiff contends with respect
to the CUTPA claim that the trial court incorrectly deter-
mined that the plaintiff had not presented evidence
sufficient to create a genuine issue of material fact as
to whether it had been damaged or whether the Magic
Quadrant vendor rankings were correlated to the pur-
chase of consulting services.
The defendant disputes these claims of error. It also
contends that the trial court’s decision may be affirmed
on the alternative grounds that (1) the defendant’s state-
ments about the plaintiff were in all respects statements
of opinion, not fact, and (2) even if the statements were
factual, the plaintiff presented no evidence that they
were false. We agree with the defendant that its state-
ments about the plaintiff were expressions of opinion
and, therefore, cannot provide the basis for a defama-
tion claim. With respect to the plaintiff’s claims resting
on the alleged falsity of the defendant’s representations
of independence and objectivity in rendering its opin-
ions, we reject those claims as well on this record.
Accordingly, we affirm the judgment of the trial court.4
II
The standard of review on summary judgment is well
established. ‘‘Summary judgment shall be rendered
forthwith if the pleadings, affidavits and other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . The scope of our
appellate review depends upon the proper characteriza-
tion of the rulings made by the trial court. . . . When
. . . the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record. . . .
‘‘In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact.’’ (Internal quotation marks omit-
ted.) Meyers v. Livingston, Adler, Pulda, Meiklejohn &
Kelly, P.C., 311 Conn. 282, 289–90, 87 A.3d 534 (2014).
First amendment principles always must remain
firmly in mind when a court considers whether legal
liability may attach to harm allegedly attributable to a
defendant’s speech,5 and both the parties and the trial
court in the present case understandably have framed
much of their respective analyses under the rubric of
the first amendment. The operative principles of sub-
stantive law governing this appeal, however, primarily
involve the common law of defamation. We make refer-
ence to constitutional doctrine when necessary, but, in
our view, the issues presented here are largely resolved
by the straightforward application of defamation law.
‘‘At common law, [t]o establish a prima facie case of
defamation, the plaintiff must demonstrate that: (1) the
defendant published a defamatory statement; (2) the
defamatory statement identified the plaintiff to a third
person; (3) the defamatory statement was published to
a third person; and (4) the plaintiff’s reputation suffered
injury as a result of the statement. . . .
‘‘A defamatory statement is defined as a communica-
tion that tends to harm the reputation of another as to
lower him in the estimation of the community or to
deter third persons from associating or dealing with
him . . . .’’ (Citation omitted; footnote omitted; inter-
nal quotation marks omitted.) Gleason v. Smolinski,
supra, 319 Conn. 430–31. But it is not enough that the
statement inflicts reputational harm. ‘‘To be actionable,
the statement in question must convey an objective
fact, as generally, a defendant cannot be held liable for
expressing a mere opinion. See Mr. Chow of New York
v. Ste. Jour Azur S.A., 759 F.2d 219, [229–30] (2d Cir.
1985) (no liability where restaurant review conveyed
author’s opinion rather than literal fact); Hotchner v.
Castillo-Puche, 551 F.2d 910, 913 [2d Cir.] ([a] writer
cannot be sued for simply expressing his opinion of
another person, however unreasonable the opinion or
vituperous the expressing of it may be) [cert. denied
sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834,
98 S. Ct. 120, 54 L. Ed. 2d 95 (1977)].’’ (Internal quotation
marks omitted.) Daley v. Aetna Life & Casualty Co.,
249 Conn. 766, 795–96, 734 A.2d 112 (1999); see also
Milkovich v. Lorain Journal Co., 497 U.S. 1, 13, 110 S.
Ct. 2695, 111 L. Ed. 2d 1 (1990) (noting that, at early
common law, defamatory opinion was actionable, but,
‘‘due to concerns that unduly burdensome defamation
laws could stifle valuable public debate, the privilege
of fair comment was incorporated into the common law
as an affirmative defense to an action for defamation’’
[internal quotation marks omitted]). ‘‘A statement can
be defined as factual if it relates to an event or state
of affairs that existed in the past or present and is
capable of being known. . . . In a libel action, such
statements of fact usually concern a person’s conduct
or character. . . . An opinion, on the other hand, is a
personal comment about another’s conduct, qualifica-
tions or character that has some basis in fact.’’ (Cita-
tions omitted; emphasis in original.) Goodrich v. Water-
bury Republican-American, Inc., 188 Conn. 107, 111,
448 A.2d 1317 (1982).
It should surprise no one that the distinction between
actionable statements of fact and nonactionable state-
ments of opinion is not always easily articulated or
discerned. See id., 112 n.5 (‘‘the difficulty in distinguish-
ing fact from opinion has been recognized by a number
of writers; see, e.g., [H.] Titus, ‘Statement of Fact versus
Statement of Opinion—A Spurious Dispute in Fair Com-
ment,’ 15 Vand. L. Rev. 1203 [1962]; [D.] Noel, ‘Defama-
tion of Public Officers and Candidates,’ 49 [Colum.] L.
Rev. 875, 878 [1949]; [N]ote, ‘Fair Comment’, 62 Harv.
L. Rev. 1207 [1949]’’); see also Biro v. Condé Nast, 883
F. Supp. 2d 441, 460 (S.D.N.Y. 2012) (‘‘the seemingly
simple proposition that expressions of opinion are pro-
tected belies an often complicated task of distinguishing
between potentially actionable statements of fact and
nonactionable expressions of opinion’’ [internal quota-
tion marks omitted]). See generally J. Kirchmeier, Note,
‘‘The Illusion of the Fact-Opinion Distinction in Defama-
tion Law,’’ 39 Case W. Res. L. Rev. 867 (1988–1989).
The difficulty arises primarily because the expression
of an opinion may, under certain circumstances, reason-
ably be understood to imply the existence of an underly-
ing basis in an unstated fact or set of facts. See Gleason
v. Smolinski, supra, 319 Conn. 435 (citing Goodrich
v. Waterbury Republican-American, Inc., supra, 188
Conn. 117–19, for proposition that statements of opin-
ion may be actionable statements of implied fact); 3
Restatement (Second), Torts § 566, p. 170 (1977) (‘‘[a]
defamatory communication may consist of a statement
in the form of an opinion, but a statement of this nature
is actionable only if it implies the allegation of undis-
closed defamatory facts as the basis for the opinion’’);
see also Milkovich v. Lorain Journal Co., supra, 497
U.S. 19 (under common law, privilege of fair comment
‘‘did not extend to a false statement of fact, whether it
was expressly stated or implied from an expression of
opinion’’ [internal quotation marks omitted]).
Context is a vital consideration in any effort to distin-
guish a nonactionable statement of opinion from an
actionable statement of fact. As this court previously
has recognized, ‘‘[t]his distinction between fact and
opinion cannot be made in a vacuum . . . for although
an opinion may appear to be in the form of a factual
statement, it remains an opinion if it is clear from the
context that the maker is not intending to assert another
objective fact but only his personal comment on the
facts which he has stated. . . . Thus, while this distinc-
tion may be somewhat nebulous . . . [t]he important
point is whether ordinary persons hearing or reading
the matter complained of would be likely to understand
it as an expression of the speaker’s or writer’s opinion,
or as a statement of existing fact.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Goodrich v. Waterbury Republican-American, Inc.,
supra, 188 Conn. 111–12. A central feature of the analy-
sis undertaken by virtually every court called on to
distinguish opinion from fact involves a careful exami-
nation of the overall context in which the statement
is made.
Courts will examine a variety of factors as part of
this contextualized analysis, and, although no uniform
test exists, the relevant case law focuses on a common
set of considerations. One prevalent approach, first
articulated by the United States Court of Appeals for
the Ninth Circuit, uses a three part test to determine
whether a reasonable fact finder could conclude that
an expression of opinion implies an actionable assertion
of fact: ‘‘(1) whether the general tenor of the entire
work negates the impression that the defendant was
asserting an objective fact, (2) whether the defendant
used figurative or hyperbolic language that negates that
impression, and (3) whether the statement in question
is susceptible of being proved true or false.’’ Partington
v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995); see also
Piccone v. Bartels, 785 F.3d 766, 772 (1st Cir. 2015)
(distinguishing statement of fact from expression of
opinion requires ‘‘an examination of the totality of the
circumstances in which the specific challenged state-
ments were made, including the general tenor and con-
text of the conversation and any cautionary terms used
by the person publishing the statement’’); Mr. Chow of
New York v. Ste. Jour Azur S.A., supra, 759 F.2d 226
(court considers [1] context in which statements were
made and circumstances surrounding statements, [2]
whether language was ‘‘precise’’ and ‘‘literal’’ or,
instead, was ‘‘loose, figurative or hyperbolic,’’ [3]
whether statements were ‘‘objectively capable of being
proved true or false,’’ and [4] whether statements imply
‘‘undisclosed defamatory facts as the basis for the opin-
ion’’); Ollman v. Evans, 750 F.2d 970, 979 (D.C. Cir.
1984) (in determining whether average person under-
stands speech at issue to be factual or expression of
opinion, court considers [1] ‘‘the common usage or
meaning of the specific language of the challenged state-
ment itself,’’ [2] ‘‘the statement’s verifiability—is the
statement capable of being objectively characterized as
true or false,’’ [3] ‘‘the full context of the statement—
the entire article or column, for example,’’ and [4] ‘‘the
broader context or setting in which the statement
appears’’), cert. denied, 471 U.S. 1127, 105 S. Ct. 2662,
86 L. Ed. 2d 278 (1985); Belly Basics, Inc. v. Mothers
Work, Inc., 95 F. Supp. 2d 144, 145 (S.D.N.Y. 2000)
(‘‘New York law dictates a three factor test to distin-
guish statements of fact from statements of opinion:
[1] whether the challenged statements have a precise
and readily understood meaning; [2] whether the state-
ments are susceptible of being proved false; and [3]
whether the context signals to the reader that the state-
ments are more likely to be expressions of opinion
rather than fact’’ [internal quotation marks omitted]);
K Corp. v. Stewart, 247 Neb. 290, 296, 526 N.W.2d 429
(1995) (‘‘a court looks at the nature and full content of
the communication and to the knowledge and under-
standing of the audience to whom the publication was
directed, considering the specificity of the statement,
its verifiability, the literary context, and the broader
setting in which the statement appears’’). Without strip-
ping these formulations of their nuance, they can be
summarized as requiring analysis of three basic, over-
lapping considerations: (1) whether the circumstances
in which the statement is made should cause the audi-
ence to expect an evaluative or objective meaning; (2)
whether the nature and tenor of the actual language
used by the declarant suggests a statement of evaluative
opinion or objective fact; and (3) whether the statement
is subject to objective verification.
In light of the context in which the present case
arises, we also find helpful the extensive case law from
other jurisdictions involving speech that rates or
reviews products, services or businesses. Some of these
cases involve defamation or other claims against defen-
dants in the business of rating the quality of sophisti-
cated financial instruments of one kind or another; oth-
ers are brought against defendants that rate or review
more garden variety consumer products and services
such as restaurants, hotels, and the like. See footnotes
6 through 8 of this opinion. Within the broader analytic
framework described in the preceding paragraph,
courts in these ‘‘ratings’’ cases resolve the issue of
whether a reasonable person could conclude that the
rating or review implies a statement of objective fact
by considering whether (1) the speaker has exercised
discretion when weighing the underlying data,6 (2) the
defendant’s rating system uses abstract terms, such as
a number between one and ten or ‘‘fuzzy descriptive
phrases like ‘superb,’ ‘good,’ and ‘strong caution’ ’’;
Browne v. Avvo, Inc., 525 F. Supp. 2d 1249, 1252 (W.D.
Wn. 2007);7 and (3) the publication containing the rat-
ings defined the terms that it used. See Smith v.
Humane Society of the United States, 519 S.W.3d 789,
800–801 (Mo. 2017) (defendant’s use of term ‘‘puppy
mill’’ to describe plaintiff’s kennel was nonactionable
when defendant did not define term).
Courts generally have held that ‘‘claims for defama-
tion based upon ratings or grades fail because [ratings
or grades] cannot be objectively verified as true or false
and thus, are opinion . . . .’’8 Castle Rock Remodeling,
LLC v. Better Business Bureau of Greater St. Louis,
Inc., 354 S.W.3d 234, 241 (Mo. App. 2011); see also
id., n.3 (citing cases). ‘‘Liability for [defamation] may
attach, however, when a negative characterization of a
person is coupled with a clear but false implication that
the author is privy to facts about the person that are
unknown to the general reader. If an author represents
that he has private, [firsthand] knowledge which sub-
stantiates the opinions he expresses, the expression of
opinion becomes as damaging as an assertion of fact.’’
(Internal quotation marks omitted.) Mr. Chow of New
York v. Ste. Jour Azur S.A., supra, 759 F.2d 225; cf.
Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 185 (4th
Cir. 1998) (opinion based on fully disclosed facts is
not actionable); Partington v. Bugliosi, supra, 56 F.3d
1156–57 (same). The case law in this area also makes
it clear that an opinion that is based on the opinions
of others does not imply defamatory facts and, there-
fore, is not actionable. See Seaton v. TripAdvisor, LLC,
728 F.3d 592, 599–601 (6th Cir. 2013) (when defendant’s
inclusion of plaintiff’s hotel on ‘‘ ‘Dirtiest Hotels’ ’’ list
was based on opinions of hotel customers, it did not
imply false facts but constituted nonactionable opin-
ion); ZL Technologies, Inc. v. Gartner, Inc., 709 F. Supp.
2d 789, 798 (N.D. Cal. 2010) (‘‘[t]he use of a rigorous
mathematical model to generate a ranking . . . based
upon [subjective evaluations by vendors and their cus-
tomers] does not transform [the defendant’s] opinion
into a statement of fact that can be proved or dis-
proved’’), aff’d, 433 Fed. Appx. 547 (9th Cir.), cert.
denied, 565 U.S. 963, 132 S. Ct. 455, 181 L. Ed. 2d 295
(2011).
‘‘[T]he determination of whether a statement is opin-
ion or rhetorical hyperbole as opposed to a factual
representation is a question of law for the court.’’ Mr.
Chow of New York v. Ste. Jour Azur S.A., supra, 759
F.2d 224; see also Smith v. Humane Society of the
United States, supra, 519 S.W.3d 798 (‘‘[w]hether an
alleged statement is capable of being treated as an opin-
ion or as an assertion of fact is a question of law’’
[internal quotation marks omitted]). ‘‘Where the court
cannot reasonably characterize the allegedly libelous
words as either fact or opinion because, for example,
innuendo is present, this becomes an issue of fact for
the jury, which would preclude a directed verdict. This
is similar to the rule which requires the jury to decide
whether an ambiguous assertion is reasonably capable
of a defamatory meaning.’’9 Goodrich v. Waterbury
Republican-American, Inc., supra, 188 Conn. 112 n.5.
With these principles in mind, we turn to the plain-
tiff’s argument that the defendant’s statements concern-
ing the plaintiff in the 2014 report reasonably could
be construed as defamatory statements of fact. The
plaintiff’s first claim of error is that the trial court incor-
rectly determined that the defendant’s placement of
the plaintiff in the challengers quadrant of the Magic
Quadrant graphic was an expression of nonactionable
opinion. We agree with the trial court that this speech
was not factual and did not imply defamatory facts.
Vendor ratings of this nature, in our view, typically are
inherently subjective, and no reasonable person would
consider a vendor’s placement in the Magic Quadrant
graphic to be anything other than the expression of the
rater’s opinion. This very issue was addressed in ZL
Technologies, Inc. v. Gartner, Inc., supra, 709 F. Supp.
2d 800, in which the United States District Court for
the Northern District of California observed that the
defendant determined the placement of vendors in a
Magic Quadrant graphic by ‘‘looking to a number of
factors, [and] applying differing weights based on its
subjective assessment of a company’s ability to execute
and completeness of vision.’’ The relative weight
assigned to the criteria and the criteria themselves ‘‘are
not facts that can be proved true or false but a reflection
of a subjective valuation . . . .’’ Id. The court in ZL
Technologies, Inc., also observed that the defendant
made the placement determination in part by consider-
ing the subjective evaluations of the vendors’ custom-
ers, which were merely opinions once removed. Id.,
797, 800. Likewise, in the present case, the defendant
assigned the plaintiff a place in the Magic Quadrant
graphic on the basis of the defendant’s subjective evalu-
ation of a variety of factors that were, in turn, assigned
relative importance or ‘‘weigh[t]’’ in accordance with
the subjective preferences embedded in its evaluative
process, and by considering the subjective evaluations
of the vendors’ customers. The trial court correctly
determined that the placement of the plaintiff in the
challengers section of the Magic Quadrant graphic was
nonactionable opinion.
This brings us to our single area of disagreement with
the trial court. Although the trial court found that the
defendant’s designation of the plaintiff as a challenger
was nonactionable, it agreed with the plaintiff that the
generic description of the term ‘‘[c]hallengers,’’ as used
in the 2014 report, and the three particularized ‘‘[c]au-
tions’’ explaining the plaintiff’s placement as a chal-
lenger contained actionable statements of fact. With
respect to the generic description of the challengers
category, the trial court agreed with the plaintiff’s con-
tention that the defendant’s rating impliedly conveyed
a factual assertion that the plaintiff, having been desig-
nated by the defendant as a challenger rather than a
leader, lacked ‘‘comprehensive portfolios and the ability
to handle multiple application and technology types’’
and was ‘‘currently struggling to deal with new technical
demands and rising expectations.’’10 We disagree.
To begin with, we return to the starting point of our
analysis, which requires consideration of the context
in which the challenged statement is made. The 2014
report set forth views regarding the relative strengths
and weaknesses of vendors operating within a particu-
lar commercial market. Whether expressed using color-
ful jargon, numerical or letter grades, stars, or the stan-
dard terminology of ‘‘good, better, best,’’ such ratings
appear virtually any place a potential customer might
look—in magazines and newsletters, television adver-
tisements, billboards, waiting rooms, websites, and
every other conceivable physical or electronic surface.
Reasonable viewers, and certainly those consumers
operating in the sophisticated market involved here,
understand that these ratings normally rest, at bottom,
on inherently and irreducibly subjective evaluations of
value, quality and performance. This assumption does
not mean that the speaker is at liberty to make false
statements of fact merely by labelling them ‘‘opinions,’’11
but it does lead us to believe that the audience ordinarily
recognizes that the context bespeaks caution, in the
sense that most ratings of goods and services reflect
an expression of evaluative opinion rather than verifi-
able fact.
Indeed, consistent with the nature and context of its
undertaking, the defendant expressly states in the 2014
report that ‘‘[t]his publication consists of the opinions
of [the defendant’s] research organization and should
not be construed as statements of fact.’’ Although this
statement does not automatically immunize the speaker
against claims of defamation; see footnote 11 of this
opinion; we conclude that the abstract, unquantifiable,
and comparative nature of the defendant’s descriptions
of the challenger and leader categories, using terms
such as ‘‘comprehensive portfolios,’’ ‘‘multiple applica-
tion and technology types,’’ and ‘‘struggling to deal with
new technical demands and rising expectations,’’ ren-
ders the statements irreducibly vague and insusceptible
of being proved true or false. The statements, moreover,
were not specific to the plaintiff but applied generally
to all vendors placed in the referenced quadrants. A
reasonable reader would understand that all aspects of
the challengers description did not necessarily apply
equally to all vendors.12
We reach a similar conclusion with respect to the
statements contained in the 2014 report’s cautions
about the plaintiff, namely, that the plaintiff ‘‘has a
limited ability to expand beyond its network manage-
ment heritage, which would be the next logical step (for
example, into [application performance monitoring] or
[information technology] operations analytics),’’ that
‘‘[o]ffering only a hardware-based deployment model
limits [the plaintiff’s] ability to address growing soft-
ware and [software as a service] solution demand,’’ and
that the plaintiff ‘‘is perceived as a conservative stalwart
in the NPMD space, and lacks the reach and mind share
that many smaller competitors have.’’ The terms ‘‘lim-
ited’’ and ‘‘limits’’ used to describe the plaintiff’s abilities
are subjective, vague, unquantifiable, relative and
unverifiable, and, although ‘‘reach’’ and ‘‘mind share’’
may be terms of art that have particular meanings in the
relevant marketing field,13 these qualities are subjective
and unverifiable. We also consider it significant that the
2014 report explained that, like the defendant’s decision
about where to place the plaintiff in the Magic Quadrant
graphic, these additional statements were based in part
on the subjective evaluations of the plaintiff’s custom-
ers. Accordingly, we conclude that the trial court incor-
rectly determined that these statements were factual
or implied defamatory statements of fact.
The plaintiff contends that, even if these statements
were not actionable as defamatory statements of fact
in and of themselves, the defendant’s speech was still
actionable because the defendant falsely claimed that
its opinions were objective and impartial. Again, we
disagree. Demonstrably false claims of objectivity,
under certain circumstances, conceivably might supply
sufficiently suggestive innuendo to transform otherwise
nonactionable statements into defamatory speech, but
this is not such a case. A false claim of objectivity,
without more, cannot be defamatory of the plaintiff
because the statement refers to the speaker rather than
the vendor. We detect no obvious or even implied corre-
spondence between the putative ‘‘objectivity’’ of the
speaker and the perception of the speaker’s statement
as fact or opinion. ‘‘Objective’’ speakers may publish
subjective opinions, whereas biased or self-interested
speakers may publish statements of fact. In the defama-
tion context, the speaker’s claim to objectivity, whether
true or not, does not turn that speaker’s negative state-
ment of opinion about the plaintiff into an actionable
statement of fact. That the defendant claimed a measure
of objectivity in its marketing materials did not convert
its vaguely worded, comparative and evaluative state-
ments into express or implied defamatory factual state-
ments. See Seaton v. TripAdvisor, LLC, supra, 728 F.3d
600 (defendant’s claim that it was most trusted advisor
and that it provided ‘‘ ‘the whole truth’ ’’ about rated
hotels did not render defendant’s opinion about plain-
tiff’s hotel actionable); ZL Technologies, Inc. v. Gar-
tner, Inc., supra, 709 F. Supp. 2d 797–98 (defendant’s
statements that its analysis was ‘‘fact-based and knowl-
edge-centric, built on objectivity, and founded on a
methodology it says ensures the ultimate objectivity’’
were ‘‘insufficient to transform the tenor of the rankings
in the [Magic Quadrant] [r]eport from opinion to fact’’
[internal quotation marks omitted]).14
The concept of ‘‘puffery,’’ although typically applied
outside the defamation context, usefully illuminates the
basic point.15 A claim of objectivity, like claims of integ-
rity, credibility, high ethical norms and the like, is often
considered nonactionable puffery because it is unlikely
to induce reliance and is insusceptible to being proved
true or false. See Singh v. Cigna Corp., 918 F.3d 57, 63
(2d Cir. 2019) (‘‘general statements about reputation,
integrity, and compliance with ethical norms are inac-
tionable puffery, meaning that they are too general to
cause a reasonable investor to rely upon them’’ [internal
quotation marks omitted]); Intermountain Stroke Cen-
ter, Inc. v. Intermountain Health Care, Inc., 638 Fed.
Appx. 778, 788 (10th Cir. 2016) (advertising that speaks
generically to caliber of defendant’s product is ‘‘classic
puffery’’ and incapable of being proved true or false);
Boca Raton Firefighters & Police Pension Fund v.
Bahash, 506 Fed. Appx. 32, 37 (2d Cir. 2012) (‘‘[t]he
statements alleged in the [plaintiff’s] complaint regard-
ing [the] integrity and credibility [of the company whose
stock was being sold] and the objectivity of [the defen-
dant security rating provider’s] credit ratings are the
type of mere puffery that we have previously held to
be not actionable’’ because ‘‘no reasonable purchaser
of [the stock] would view statements such as these as
meaningfully altering the mix of available information
about the company [whose stock was being sold]’’
[internal quotation marks omitted]); ECA, Local 134
IBEW Joint Pension Trust of Chicago v. JP Morgan
Chase Co., 553 F.3d 187, 206 (2d Cir. 2009) (defendant’s
statements regarding its good reputation for integrity
were ‘‘no more than ‘puffery’ ’’); ECA, Local 134 IBEW
Joint Pension Trust of Chicago v. JP Morgan Chase Co.,
supra, 206 (‘‘[the] [p]laintiffs conflate the importance
of a . . . reputation for integrity with the materiality
of [the defendant’s own] statements regarding its repu-
tation,’’ and ‘‘[n]o investor would take [the defendant
bank’s statement that it set the standard for best prac-
tices] seriously . . . for the simple fact that almost
every investment bank makes these statements’’).
Putting aside our conceptual problems with the plain-
tiff’s theory of defamation premised on the allegedly
false claims of objectivity, we also agree with the trial
court that the plaintiff failed to present any credible
evidence that the Magic Quadrant rankings in the 2014
report were based on the amount of consulting services
that each vendor purchased from the plaintiff. Specifi-
cally, the court noted that the two vendors who spent
the most on consulting services were ranked compara-
bly to or lower than the plaintiff in the Magic Quadrant
graphic—which the plaintiff’s expert had disregarded
when he found a correlation between expenditures and
rankings. Although the plaintiff’s expert attempted to
salvage his pay to play correlation by reference to these
two vendors’ higher rankings in other Magic Quadrant
reports, and the plaintiff claims on appeal that, at the
very least, this broader historical point created a genu-
ine issue of material fact, we remain unpersuaded. The
unavoidable reality is that, with respect to the publica-
tion at issue, the plaintiff’s own expert was unable to
provide an opinion supporting the plaintiff’s fundamen-
tal theory of wrongdoing without entirely disregarding
the data pertaining to the two highest paying vendors in
the rankings.16 We agree with the trial court’s conclusion
that ‘‘[s]uch manipulation of evidence does not create
a genuine issue of material fact or support a question
for the jury’’ as to whether a correlation between expen-
ditures and rankings existed.
The plaintiff also contends that, even if the trial court
properly rejected its expert’s conclusions correlating
expenditures and rankings, there was other evidence
that would allow a jury to infer that the defendant’s
claims of objectivity and impartiality were false. The
plaintiff points in particular to evidence that the defen-
dant had told the plaintiff that the defendant ‘‘need[ed]
to fix things with [the plaintiff] considering the focus
our research agenda has on [the plaintiff’s] market in
2013’’ and that ‘‘market leaders need to be represented
properly.’’ Singhal, the plaintiff’s president and chief
executive officer, testified at his deposition that one of
the defendant’s analysts had told him that the plaintiff
should spend more money on marketing, which Singhal
interpreted as ‘‘code . . . for spending more money on
[the defendant’s] services.’’ The evidence also estab-
lished that the plaintiff was placed in the leaders quad-
rant in early drafts of the 2014 report, but, after Kowall
‘‘tweaked’’ the underlying weightings, the plaintiff
ended up in the challengers quadrant. The plaintiff addi-
tionally points to evidence that the defendant repeat-
edly referred to the plaintiff as a leader in various docu-
ments, thereby effectively admitting that the plaintiff
should have been placed in the leaders quadrant.
We agree with the trial court’s findings that this evi-
dence was insufficient to create a genuine issue of mate-
rial fact regarding the truth of the defendant’s claims
of objectivity and impartiality. With respect to the
defendant’s references to the plaintiff as a leader, the
trial court correctly observed that all but one of these
references were made solely in connection with the
plaintiff’s market share, which was consistent with its
placement in the challengers quadrant. With respect
to the earlier draft placing the plaintiff in the leaders
quadrant, it is indisputable that the defendant’s analysts
engaged in a lengthy process of repositioning various
vendors based on a variety of criteria. Although Kowall
at one point wrote that he believed that the plaintiff
‘‘technically’’ should be placed in the leaders quadrant,
or that it at least should be placed on the line between
the leaders quadrant and the challengers quadrant, and
other analysts questioned the plaintiff’s ranking as a
challenger, these exchanges took place at a time when
the analysts were openly debating the position of ven-
dors, including the plaintiff, in the graphic. The evidence
showed that the positions of almost all of the vendors
in the Magic Quadrant graphic worsened over time as
the analysts ‘‘tweaked’’ the data, and the plaintiff’s posi-
tion relative to the other vendors remained relatively
constant. There is no suggestion in any of these commu-
nications that the adjustments were made on the basis
of the vendors’ expenditure levels. We likewise con-
clude that the statement made by the defendant’s ana-
lysts to the plaintiff that the defendant needed to ‘‘fix
things’’ with the plaintiff and that the plaintiff should
spend more on marketing reflect nothing more than a
recommendation for curative action and cannot reason-
ably support an actionable inference that the plaintiff’s
ranking was dependent on pay to play expenditures.
The availability of the defendant’s consulting services
was no secret to anyone; the defendant publicly dis-
closed the fact that some of the vendors that it ranked
in its Magic Quadrant reports purchased consulting ser-
vices from it, enabling readers to consider the defen-
dant’s claims of objectivity and impartiality in their
proper context.
The plaintiff contends that any ambiguity in the fore-
going evidence must, at the summary judgment stage,
be construed in its favor because a reasonable fact
finder could resolve the ambiguity and conclude that
the defendant’s claims of objectivity and impartiality
were false. The flaw in this argument is that it misappre-
hends the particular nature of the ambiguity at issue.
The plaintiff is correct that, generally speaking, sum-
mary judgment will not be rendered if there is an ambi-
guity in the evidence such that a reasonable person
might decide a disputed issue of material fact in favor
of either the plaintiff or the defendant. See, e.g.,
H.O.R.S.E. of Connecticut, Inc. v. Washington, 258
Conn. 553, 565, 783 A.2d 993 (2001) (ambiguous mean-
ing of critical deposition testimony precluded summary
judgment). It also is true that, in defamation cases, a
jury issue can arise when an expression of opinion
contains an ambiguity that reasonably can be under-
stood to convey by implication an actionable factual
assertion.17 See Goodrich v. Waterbury Republican-
American, Inc., supra, 188 Conn. 112 n.5 (referring to
‘‘the rule which requires the jury to decide whether an
ambiguous assertion is reasonably capable of a defama-
tory meaning’’). But the ambiguity at work in the present
case is of a different kind. When we say that certain
statements in the 2014 report are properly characterized
as vague and ambiguous, we mean that the statements
could not be understood by a reasonable juror to imply
a factual statement; their ambiguity does not invite the
listener to infer a latent factual assertion but, rather,
suggests an imprecise and irreducibly subjective mean-
ing that cannot be understood to convey a statement
of fact. Thus, the statements are expressions of opinion
as a matter of law. See, e.g., Mr. Chow of New York
v. Ste. Jour Azur S.A., supra, 759 F.2d 224 (whether
statement is factual or expression of opinion is question
of law). This conclusion does not preclude summary
judgment in the present context but, instead, compels it.
Accordingly, we conclude that the trial court correctly
determined as a matter of law that no reasonable juror
could find by a preponderance of the evidence18 that
the defendant’s claims of objectivity and impartiality
were defamatory.19 Any evidence presented by the plain-
tiff that might arguably support an inference that the
defendant had a conflict of interest would not render
its statements actionable in a defamation action. See
Abu Dhabi Commercial Bank v. Morgan Stanley &
Co., 651 F. Supp. 2d 155, 179 (S.D.N.Y. 2009) (‘‘[t]he
existence of conflicts of interest alone typically is not
sufficient to establish that [the] defendants ‘knowingly’
made a false and misleading statement’’). Indeed, as we
have explained, a reasonable purchaser of the defen-
dant’s research reports would understand that compar-
ative ratings of products and services cannot be strictly
objective. See Browne v. Avvo, Inc., supra, 525 F. Supp.
2d 1253 n.1 (‘‘[c]omparisons and comparative ratings
are often based as much on the biases of the reviewer
as on the merits of the reviewed: they should, therefore,
be relied upon with caution’’); id., 1253 (stating, with
respect to defendant’s comparative ratings, that ‘‘that
and $1.50 will get you a ride on Seattle’s new South Lake
Union Streetcar’’ [internal quotation marks omitted]);
Castle Rock Remodeling, LLC v. Better Business
Bureau of Greater St. Louis, Inc., supra, 354 S.W.3d
241 (ratings and grades ‘‘cannot be objectively verified
as true or false’’).
Our conclusion that the trial court properly rendered
summary judgment for the defendant on the defamation
claim is also dispositive of the plaintiff’s claim that the
trial court improperly rendered summary judgment for
the defendant on the CUTPA claim. Because the defen-
dant’s statements about the plaintiff in the 2014 report
were nonactionable expressions of opinion, and
because the plaintiff failed to present sufficient evi-
dence to support its pay to play claim, we are compelled
to conclude that the plaintiff has failed to establish a
viable claim within the purview of CUTPA.
In summary, we conclude that the trial court incor-
rectly determined that the 2014 report contained certain
statements about the plaintiff that a reasonable juror
could find to be defamatory and either to be factual or
to imply undisclosed defamatory facts. In our view, all
of the statements that the defendant made about the
plaintiff were expressions of nonactionable opinion. We
further conclude that, at least in the absence of any
credible evidence tending to establish that the defen-
dant’s claims of objectivity and impartiality were prov-
ably false and that it was engaged in a pay to play
scheme, such speech cannot support either the plain-
tiff’s defamation claim or its CUTPA claim. Accordingly,
we affirm the trial court’s judgment on the alternative
ground that all of the challenged statements by the
defendant were nonactionable expressions of opinion.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The first amendment to the United States constitution provides in rele-
vant part: ‘‘Congress shall make no law . . . abridging the freedom of
speech . . . .’’ This prohibition is made applicable to the states through
the due process clause of the fourteenth amendment to the United States
constitution. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,
489 n.1, 116 S. Ct. 1495, 134 L. Ed. 2d 711 (1996).
2
The precise nature of these consulting services is unclear from the record,
but that has no bearing on our analysis or the disposition of this appeal.
3
We subsequently granted the application of the Reporters Committee
for Freedom of the Press to file an amicus curiae brief in support of the
defendant’s contention that its statements about the plaintiff were nonaction-
able opinion and the application of the Connecticut Business and Industry
Association to file an amicus curiae brief on the issue of whether this court
should stop applying the so-called ‘‘cigarette rule’’ in CUTPA cases and,
instead, apply the ‘‘substantial unjustified injury’’ test.
4
Because we affirm the trial court’s judgment on the basis of our conclu-
sions that the defendant’s statements regarding the plaintiff were expres-
sions of nonactionable opinion and that the plaintiff failed to present evi-
dence of a pay to play scheme, we need not address the other claims raised
by the plaintiff on appeal.
5
See Gertz v. Robert Welch, Inc., 418 U.S. 323, 325, 94 S. Ct. 2997, 41 L.
Ed. 2d 789 (1974) (‘‘[t]his [c]ourt has struggled for nearly a decade [since
New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed.
2d 686 (1964)] to define the proper accommodation between the law of
defamation and the freedoms of speech and press protected by the [f]irst
[a]mendment’’); Goodrich v. Waterbury Republican-American, Inc., 188
Conn. 107, 114–15, 448 A.2d 1317 (1982) (observing that common-law ‘‘privi-
lege of ‘fair comment’ ’’ was ‘‘elevated to constitutional status’’ in New York
Times Co. v. Sullivan, supra, 376 U.S. 254). The distinction between fact
and opinion at the center of the present case figures prominently in first
amendment law, as well. See, e.g., Milkovich v. Lorain Journal Co., 497
U.S. 1, 20, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990) (‘‘a statement of opinion
relating to matters of public concern which does not contain a provably
false factual connotation will receive full constitutional protection’’); see
also 3 Restatement (Second), Torts § 566, comment (c), pp. 172–73 (1977)
(entitled ‘‘Effect of the Constitution’’). Under Milkovich, the characterization
of the subject matter at issue as a matter of ‘‘public’’ or ‘‘private’’ concern
may affect the first amendment analysis. See Milkovich v. Lorain Journal
Co., supra, 19 (‘‘a statement on matters of public concern must be provable
as false before there can be liability’’ under first amendment [emphasis
added]). Milkovich appears to have left open the issue of whether a statement
of opinion that involves a matter of private concern could be actionable
under state law consistent with the first amendment. See id., 20. There is
no need to address the issue here because the plaintiff’s claims fail.
6
See Compuware Corp. v. Moody’s Investors Services, Inc., 499 F.3d 520,
529 (6th Cir. 2007) (credit rating based on ‘‘subjective and discretionary
weighing of complex factors’’ was nonactionable opinion); Aviation Charter,
Inc. v. Aviation Research Group/US, 416 F.3d 864, 871 (8th Cir. 2005) (‘‘sub-
jective interpretation of multiple objective data points’’ constitutes opinion);
ZL Technologies, Inc. v. Gartner, Inc., 709 F. Supp. 2d 789, 798 (N.D. Cal.
2010) (when defendant weighed importance of certain facts differently based
on relative value that it assigned to different criteria, rating was nonaction-
able opinion), aff’d, 433 Fed. Appx. 547 (9th Cir.), cert. denied, 565 U.S. 963,
132 S. Ct. 455, 181 L. Ed. 2d 295 (2011); Browne v. Avvo, Inc., supra, 525
F. Supp. 2d 1252 (when underlying data were weighted based on defendant’s
subjective opinions regarding relative importance of various attributes, com-
parative rating of plaintiff attorney was nonactionable opinion); Castle Rock
Remodeling, LLC v. Better Business Bureau of Greater St. Louis, Inc.,
354 S.W.3d 234, 242–43 (Mo. App. 2011) (when defendant’s rating system
weighted objective data, consumer rating was nonactionable opinion).
7
See also Aviation Charter, Inc. v. Aviation Research Group/US, 416
F.3d 864, 867, 870–71 (8th Cir. 2005) (when defendant assigned ratings of
‘‘Does Not Qualify,’’ ‘‘Silver,’’ ‘‘Gold’’ and ‘‘Platinum,’’ rating of plaintiff as
‘‘Does Not Qualify’’ was not sufficiently factual to be susceptible of being
proved true or false); Jefferson County School District No. R-1 v. Moody’s
Investor’s Services, Inc., 175 F.3d 848, 856 (10th Cir. 1999) (defendant’s
use of vague phrases such as ‘‘negative outlook’’ and ‘‘ongoing financial
pressures’’ to describe plaintiff’s financial condition constituted nonaction-
able opinion [internal quotation marks omitted]); Castle Rock Remodeling,
LLC v. Better Business Bureau of Greater St. Louis, Inc., 354 S.W.3d 234,
242–43 (Mo. App. 2011) (defendant’s ‘‘C’’ rating of plaintiff was not ‘‘suffi-
ciently factual to be susceptible of being proved true or false’’ [internal
quotation marks omitted]); K Corp. v. Stewart, supra, 247 Neb. 296–97
(defendant’s use of subjective terms such as ‘‘minimum standards,’’ ‘‘unac-
ceptable level of deterioration,’’ ‘‘acceptable quality,’’ and ‘‘first class condi-
tion’’ constituted expression of opinion).
8
See, e.g., Seaton v. TripAdvisor, LLC, 728 F.3d 592, 600–601 (6th Cir.
2013) (defendant’s placement of plaintiff’s hotel on ‘‘ ‘Dirtiest Hotels’ ’’ list
constituted nonactionable opinion); ZL Technologies, Inc. v. Gartner Group,
Inc., 433 Fed. Appx. 547, 548 (9th Cir.) (defendant’s placement of plaintiff
in Magic Quadrant graphic constituted nonactionable opinion), cert. denied,
565 U.S. 963, 132 S. Ct. 455, 181 L. Ed. 2d 295 (2011); Compuware Corp. v.
Moody’s Investors Services, Inc., 499 F.3d 520, 529 (6th Cir. 2007) (defen-
dant’s credit rating of plaintiff constituted nonactionable opinion); Aviation
Charter, Inc. v. Aviation Research Group/US, 416 F.3d 864, 870–71 (8th Cir.
2005) (defendant’s safety rating of plaintiff air charter services provider
constituted nonactionable opinion); Jefferson County School District No.
R-1 v. Moody’s Investor’s Services, Inc., 175 F.3d 848, 856 (10th Cir. 1999)
(defendant’s credit rating of plaintiff school district constituted nonaction-
able opinion); Mr. Chow of New York v. Ste. Jour Azur S.A., supra, 759 F.2d
229 (with exception of statement that plaintiff restaurant served Peking
duck in one dish instead of traditional three dishes, which was susceptible
of being proved true or false, defendant’s review of plaintiff’s restaurant
constituted nonactionable opinion); Browne v. Avvo, Inc., supra, 525 F.
Supp. 2d 1251 (defendant’s comparative rating of attorneys constituted non-
actionable opinion); Smith v. Humane Society of the United States, supra,
519 S.W.3d 800–801 (defendant’s inclusion of plaintiff’s kennel in report
listing worst puppy mills in state constituted nonactionable opinion); Castle
Rock Remodeling, LLC v. Better Business Bureau of Greater St. Louis,
Inc., 354 S.W.3d 234, 242–43 (Mo. App. 2011) (defendant’s rating of plaintiff’s
business constituted nonactionable opinion).
9
See Burns v. Telegram Publishing Co., 89 Conn. 549, 552, 94 A. 917
(1915) (‘‘[i]t is only when the court can say that the publication is not
reasonably capable of any defamatory sense, that the court can rule, as [a]
matter of law, that the publication is not libelous, or withdraw the case
from the jury, or order a verdict for the defendant’’ [internal quotation
marks omitted]); 3 Restatement (Second), supra, § 614, p. 311 (‘‘[t]he court
determines . . . whether a communication is capable of bearing a [defama-
tory] meaning, and . . . [t]he jury determines whether a communication,
capable of a defamatory meaning, was so understood by its recipient’’); 3
Restatement (Second), supra, § 614, comment (d), p. 312 (‘‘if, in the opinion
of the court, the question [of whether a statement is capable of bearing a
defamatory meaning] is one on which reasonable men might differ, it is for
the jury to determine which of the two permissible views they will take’’).
10
The trial court did not expressly address the former statement, which
was included in the defendant’s definition of ‘‘[l]eader’’ in the 2014 report,
but concluded that a reasonable juror could find that the latter statement
was factual in nature, or at least that it implied undisclosed defamatory facts.
11
See Milkovich v. Lorain Journal Co., supra, 497 U.S. 18 (observing that
statement couched as opinion will be actionable if it implies assertion of
objective fact); Gleason v. Smolinski, supra, 319 Conn. 435 n.34 (‘‘the ‘mere
recitation of prefatory phrases such as ‘‘in my opinion’’ or ‘‘I think’’ will not
render innocent an otherwise defamatory statement’ ’’).
12
The trial court also concluded that an assertion of fact is conveyed in
the defendant’s statement that challengers had ‘‘architectures, feature sets
and pricing structures that require modernization (often in progress) to
better compete with those in the [l]eaders quadrant.’’ The plaintiff does not
address or defend this particular finding on appeal. In any event, we would
conclude that this statement is an expression of opinion for the same reasons
the other statements in the challengers and leaders descriptions are expres-
sions of opinion.
13
See, e.g., T. Marabella, Note, ‘‘Elemental Copyright: The Complexity of
Ideas and the Alchemy of Mind-Share,’’ 90 B.U. L. Rev, 2149, 2161 (2010)
(‘‘[mind share] is a term used in the marketing and advertising world, defined
as the likelihood that a consumer will think of a particular brand when a
type of product is mentioned’’).
14
Section 566 of the Restatement (Second) of Torts makes the same point
with respect to the closely related concept of the speaker’s honesty or
sincerity when expressing an opinion. See 3 Restatement (Second), supra,
§ 566, comment (c), p. 175 (‘‘Should it be a significant issue whether the
expression of opinion was the actual opinion of the defendant? Though an
asserted factual statement that it is the actual opinion of the defendant may
be held to be implied, its truth or falsity would apparently have no effect
on the defamatory character of the communication.’’). But see Goodrich v.
Waterbury Republican-American, Inc., supra, 188 Conn. 123 (‘‘[a] comment
is fair when [inter alia] it . . . is an honest expression of the writer’s real
opinion or belief’’ [emphasis in original; internal quotation marks omitted]).
The court in Goodrich quoted the decision of the New York Court of Appeals
in Briarcliff Lodge Hotel, Inc. v. Citizen-Sentinel Publishers, Inc., 260 N.Y.
106, 118–19, 183 N.E.193 (1932), which cited no authority to support the
statement. Goodrich v. Waterbury Republican-American, Inc., supra,
123–24.
It has been held in cases involving claims of financial fraud that a false
claim of objectivity may render a statement actionable. See, e.g., In re
International Business Machines Corporate Securities Litigation, 163 F.3d
102, 109 (2d Cir. 1998) (‘‘an opinion may still be actionable if the speaker
does not genuinely and reasonably believe it or if it is without a basis in
fact’’); Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 651 F. Supp.
2d 155, 176 (S.D.N.Y. 2009) (same); State v. Moody’s Corp., Superior Court,
judicial district of Hartford, Docket No. X04-HHD-CV-XX-XXXXXXX-S (May 10,
2012) (54 Conn. L. Rptr. 116, 121) (when defendant claimed that it had
employed ‘‘specific policies and procedures . . . to protect its indepen-
dence and objectivity,’’ statement was actionable under theory of misrepre-
sentation because it was susceptible to being proved false). In our view,
there would seem to be a significant difference between the business of
rating securities, which is predictive and widely perceived as employing
standardized econometric methodologies requiring a high degree of mathe-
matical and technical skill, and the business of rating products and services,
which involves commentary on an existing state of affairs and is generally
understood to be inherently subjective in nature. In light of this difference,
as well as the differences between the elements of a fraud claim and a
defamation claim; see F. Harper & M. McNeely, ‘‘A Syntheses of the Law
of Misrepresentation,’’ 22 Minn. L. Rev. 939, 947 (1938) (‘‘[I]n misrepresenta-
tion, the defendant has misled the plaintiff himself, whereas in defamation
he has misled a third person to the plaintiff’s loss. Thus, in the case of
misrepresentation, the plaintiff complains because he himself has been
induced to enter into some commercial transaction by his reliance upon
the misstatements which the defendant has made. In defamation, however,
he complains because some third person has believed or is presumed to have
believed the defendant’s misstatements about him, and has been induced
or is presumed to have been induced to act in reliance thereon to the
plaintiff’s loss.’’ [Footnote omitted.]); it is far from clear to us that the same
rule should apply in the context of a defamation claim brought in the ratings
context by the subject of the purportedly defamatory opinion.
15
‘‘Puffery is an exaggeration or overstatement expressed in broad, vague,
and commendatory language.’’ Castrol, Inc. v. Pennzoil Co., 987 F.2d 939,
945 (3d Cir. 1993); see also Newcal Industries, Inc. v. IKON Office Solution,
513 F.3d 1038, 1053 (9th Cir. 2008) (‘‘[u]ltimately, the difference between a
statement of fact and mere puffery rests in the specificity or generality of
the claim’’), cert. denied, 557 U.S. 903, 129 S. Ct. 2788, 174 L. Ed. 2d 290 (2009).
16
The plaintiff contends that the trial court prematurely concluded that
there was no correlation between expenditures and placement in the Magic
Quadrant graphic because the trial court barred the plaintiff ‘‘from taking
discovery related to [the defendant’s] relationship with, payments from, and
treatment of companies other than [the plaintiff] . . . .’’ The plaintiff, how-
ever, has neither challenged the correctness of the court’s discovery ruling
on appeal nor explained what additional information it would require to
determine whether there was a correlation between expenditures and place-
ment in the Magic Quadrant graphic. Indeed, the plaintiff acknowledges that
it had information concerning the total amounts that other vendors had
paid the defendant for consulting services and the placement of the two
vendors who paid most in other Magic Quadrant reports for markets other
than NPMD.
17
For example, this court found that an ‘‘ambiguous’’ statement appearing
in a newspaper article that the plaintiff had charged the city of Bridgeport
for 8000 gallons of gasoline, but, when measured, the volume had ‘‘shrunk
[1000] gallons,’’ was actionable because it was ‘‘susceptible of a libelous
meaning [i.e., overcharging], and capable of being injurious to the plaintiff.
It might have been understood by one reading it as implying that the plaintiff
was guilty of some dishonest action in connection with the loss of the
gasoline. So understood, the article was libelous. It being capable of such
a meaning, it was proper for the plaintiff in his complaint, by way of innuendo,
to allege that it conveyed such a meaning to its readers.’’ (Internal quotation
marks omitted.) Burns v. Telegram Publishing Co., 89 Conn. 549, 551–52,
94 A. 917 (1915).
18
The defendant argues that the plaintiff is required to prove falsity by
clear and convincing evidence because the plaintiff is a limited purpose
public figure and that the 2014 report constituted speech on a matter of
public concern. See Gleason v. Smolinski, supra, 319 Conn. 432. We need
not address this issue because we have concluded that the plaintiff’s claims
fail even under the preponderance standard.
19
This conclusion is reached in the context of a defamation claim, and
the plaintiff is a vendor alleging harm arising from statements made as part
of the defendant’s rating and review of the plaintiff’s information technology
products and services. Different claims in a different context brought by
a differently situated plaintiff may fare differently. Compare Abu Dhabi
Commercial Bank v. Morgan Stanley & Co., 651 F. Supp. 2d 155, 176, 179
(S.D.N.Y. 2009) (when defendant rating agencies, which held themselves
out as being unbiased and independent from companies that they rated,
knew that ‘‘the ratings process was flawed . . . that the portfolio was not
a safe, stable investment, and . . . that [they] could not issue an objective
rating because of the effect it would have on their compensation, it may
be plausibly inferred that [they] knew they were disseminating false and
misleading ratings’’); see also footnote 14 of this opinion.