United States District Court, D. New Hampshire
Barbadoro United States District Judge.
Karpinski and Paul Edalat allege that they were defamed in an
article published by the New Hampshire Union Leader. They
have sued the paper's owner, its executive editor, and
the article's author for defamation, false light invasion
of privacy, conspiracy, and violation of the New Hampshire
Consumer Protection Act. The defendants have responded with a
motion to dismiss contending that: (1) the statements that
gave rise to the defamation and false light claims are
protected by the fair report privilege; (2) the complaint
cannot support a conspiracy claim because it does not
sufficiently allege that the defendants entered into an
unlawful agreement; and (3) the Consumer Protection Act claim
fails because the article in question is not deceptive. After
carefully considering the parties' respective arguments,
I agree that the complaint must be dismissed.
Karpinski is a graduate of the University of New Hampshire
and a runner-up in the Miss New Hampshire USA pageant. In
early 2015 she moved to California and began working as
Director of Sales for PharmaPak, Inc.
(“PharmaPak”), a medical products company founded
by Bruce Cahill. See Complaint, Doc. No. 1 ¶¶
12-14. During her time at PharmaPak, Karpinski met Paul
Edalat, a major shareholder of the firm. Id. ¶
21. Things soon went south. In April 2016, Cahill filed a
federal lawsuit against numerous defendants, including Edalat
and Karpinski, alleging RICO violations, securities
violations, fraud and deceit, and fraud by concealment. See
Id. ¶ 20; Complaint, Cahill et al. v.
Edalat et al., No. 8:16-cv-00686-AG-DFM (C.D. Cal. Apr.
12, 2016), Doc. No. 1 [hereinafter “Cahill
responded with counterclaims of her own. In pleading her
claims, she details an incident in November 2015, when
Cahill grabbed Karpinski's arm, and pulled her bodily
towards himself in an attempt to kiss Karpinski. She
deflected the kiss by turning her face away, and pulling her
body away from Cahill.
Cahill docket, Karpinski Counter-Claim and
Cross-Complaint, Doc. No. 30 at 5. That incident is cited to
support two of her causes of action: first, that Cahill
breached the covenant of good faith and fair dealing by
“sexually harass[ing] Karpinski and create[ing] a
hostile work environment;” and second, that Cahill
wrongfully terminated her by firing her “in the hopes
of silencing here [sic] and to hide the fact of his sexual
assault on her.” See Id. at 36. Karpinski also
brought claims against Cahill for common law assault and
common law battery that are based in part on the unwanted
kiss. See Id. at 37.
accompanied her counterclaims with public relations articles
and social media activity. She issued an online press release
titled “UCI Trustee Allegedly Wrongfully Terminates
Former Employees” that stated “Former Vice
President of Sales Olivia Karpinski also alleges sexual
harassment and sexual assault by Cahill.” See
Cahill docket, Doc. No. 95-8; Doc. No. 94-1 at 13.
And she instagrammed a statement advocating for dignified
workplace treatment of women, asserting that she “was
in a constantly stressful and hostile environment and was
sexually assaulted after being given a promotion” by
Bruce Cahill. See Cahill docket, Doc. No. 95-6.
Edalat linked to Karpinski's posts on social media,
writing, “Bruce Cahill and his fraud of a gang will
face justice soon!” See Cahill docket, Doc. No. 95-15.
Not to be outdone, Cahill fired back with an amended
complaint, adding libel claims against Edalat and Karpinski
for wrongfully accusing him, inter alia, of sexual assault,
sexual harassment, and wrongful termination. See Cahill
docket, Cahill Second Amended Complaint, Doc. No. 142 at
later deposed Karpinski in an apparent attempt to undermine
her claim that he had sexually assaulted her. Referring to
the parts of the body that California's civil sexual
assault statute defines as “intimate parts, ”
see Cal. Civ. Code § 1708.5(d), his counsel asked
Q. Did he ever at any time touch you in or around your breast
area to try to make sexual contact with you?
A. More my shoulder.
Q. Breast? “Yes” or “no.”
Q. How about the genital areas?
Q. How about the buttock areas?
docket, Doc. No. 95-7 at 2. She also described the story of
the unwanted kiss from Cahill, testifying that “He did
kiss me. It landed on my face, just not on my lips.”
Cahill docket, Doc. No. 95-7 at 5. Cahill's counsel later
relied on this exchange in contending in a pleading that
“[b]y far the most damaging accusation, that Mr. Cahill
sexually assaulted Karpinski, was actually admitted by her to
be false just days ago when Karpinski's deposition was
taken on October 14, 2016.” See Cahill docket,
Doc. No. 94-1 at 12-13.
Worldwide, a public relations company, subsequently reached
out to the Union Leader about publishing an article on the
case. See Complaint, Doc. No. 1 ¶ 24. The Denterlein
agent framed the case as “a story out of California
with a strong local connection in New Hampshire.” See
Doc. No. 1-1 at 3. The agent's email included
“background” on the case and claimed that Edalat
and Karpinski “publicly accused Cahill of alleged
crimes and misdeeds . . . includ[ing] a false claim of sexual
harassment that Karpinski later admitted, under oath, was
baseless.” Doc. No. 1-1 at 4. The next day, the agent
emailed excerpts of Karpinski's deposition in the
California case and contact information for various
litigation counsel to Patricia Grossmith, a Union Leader
reporter. See Complaint, Doc. No. 1 ¶ 29.
days after the initial contact from Denterlein, the Union
Leader published its article. The front page of the June 4,
2017 New Hampshire Union Leader Sunday Edition boasted the
headline “California Fraud Suit Names NH Pageant
Finalist.” See Complaint, Doc. No. 1 ¶ 13; Union
Leader Article, Doc. No. 1-2. Under a large headshot of
Karpinski, the article begins
A former beauty queen from Auburn is among those being sued
in California in a fraud case involving allegations that at
least $2.3 million of investors' money in a
pharmaceutical company was used on junkets to Las Vegas and
other lavish items.
No. 1-2 at 2. It covers Cahill's allegations that Edalat
defrauded the company while living luxuriously and that
Karpinski and Edalat falsely reported that Cahill was
distributing illegal drugs. Id. The author does not
expressly cite Karpinski's counterclaims but instead
states that “Edalat has accused Cahill of sexually
harassing Karpinski, but under oath she later admitted the
allegations were baseless, according to court records.”
Id. at 3.
Cahill case was tried later that summer. In November 2017,
judgment was entered in favor of Cahill against Edalat for
$700, 000; in favor of Cahill against Karpinski for $11, 000;
in favor of Edalat against Cahill for $250, 000, and in favor
of Karpinski against Cahill for $10, 000. See Cahill docket,
Doc. No. 367. Because the jury returned general verdicts, it
is unclear which claim or claims it deemed meritorious. See
Verdict Form, Cahill docket, Doc. No. 324.
STANDARD OF REVIEW
considering a motion to dismiss under Federal Rule of Civil
Procedure Rule 12(b)(6), I “accept as true the well-
pleaded factual allegations of the complaint, draw all
reasonable inferences therefrom in the plaintiff's favor
and determine whether the complaint, so read, sets forth
facts sufficient to justify recovery on any cognizable
theory.” Martin v. Applied Cellular Tech., 284
F.3d 1, 6 (1st Cir. 2002). The plaintiff must make factual
allegations sufficient to “state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially
plausible if it pleads “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. The plausibility standard
is not akin to a ‘probability requirement,' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citations omitted).
ruling on a motion to dismiss, the court accepts all
plausibly pleaded facts to be true and can consider
“matters of public record[ ] and other matters
susceptible to judicial notice.” Lydon v.
Local 103, Int'l Bhd. of Elec. Workers, 770 F.3d 48,
53 (1st Cir. 2014). Such documents include records “the
authenticity of which are not disputed by the parties; . . .
official public records; . . . documents central to
plaintiffs' claim; [and] . . . documents sufficiently
referred to in the complaint.” Freeman, 714 F.3d at 36
(quoting Watterson, 987 F.2d at 3 (1st Cir. 1993)) (internal
quotation marks omitted).
appropriate case, an affirmative defense may be adjudicated
on a motion to dismiss. See, e.g., Blackstone Realty LLC
v. FDIC, 244 F.3d 193, 197 (1st Cir. 2001). Such
adjudication is appropriate only if “the facts that
establish the defense [are] definitively ascertainable”
from the complaint and matters of judicial notice and those
facts “conclusively establish the affirmative
defense.” In re Colonial Mortg. Bankers Corp., 324 F.3d
12, 16 (1st Cir. 2003).
and Edalat base their claims on four allegedly false and