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LOWENSCHUSS v. WEST PUBL. CO.

October 17, 1975

Fred LOWENSCHUSS
v.
WEST PUBLISHING COMPANY



The opinion of the court was delivered by: FULLAM

 FULLAM, District Judge.

 Plaintiff brought this action in the Court of Common Pleas of Philadelphia County, seeking injunctive relief and damages by reason of the defendant's having published in its Federal Supplement an opinion of a United States district judge containing allegedly false and defamatory references to the plaintiff. The action was removed to this Court, and the defendant has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff has filed a motion for summary judgment. The defendant has objected to plaintiff's motion on the ground that defendant has not yet filed a responsive answer to the complaint, and that the facts asserted by plaintiff are not uncontroverted, but merely assumed to be true for purposes of the motion to dismiss. Nevertheless, the defendant has also filed an affidavit in response to plaintiff's motion for summary judgment, and the record contains plaintiff's requests for admissions and defendant's responses thereto. While it is therefore probable that the case could be disposed of as on cross motions for summary judgment, the issues which I regard as dispositive are squarely presented in pure form by the defendant's 12(b)(6) motion, and I see no need to gauge the effect of anything in the record except the complaint and defendant's motion to dismiss.

 For purposes of the present ruling, the following facts alleged in the complaint will be taken as correct: Plaintiff is an attorney, actively engaged in the practice of law, and bearing an excellent reputation. As the sole trustee of a private pension fund, plaintiff brought suit in his own name, and on behalf of a class of investors similarly situated, in the United States District Court for the Southern District of New York *fn1" asserting various violations of the securities laws in connection with an aborted tender offer. Lowenschuss v. Kane, 367 F. Supp. 911 (S.D.N.Y.). The case was assigned to the docket of Judge Kevin Thomas Duffy.

 
"On February 2, 1973, two things happened: (1) The management of A & P announced its opposition to the tender offer and indicated that it would take legal action to prevent the consummation of the tender offer; and (2) the plaintiff placed an order for 2000 shares of A & P stock, which order was executed in two transactions on the New York Stock Exchange. I make no finding as to which of these events took place first. *fn1" Thereafter, but before February 13, 1973, plaintiff tendered the A & P shares in accordance with the G & W tender offer."

 The footnote reads as follows:

 
"1. It should be of some interest to the appropriate body of the Pennsylvania Bar whether the plaintiff, a lawyer, truly purchased these shares as an investment for his pension plan or merely as a vehicle for this litigation in which counsel fees are sought."

 Promptly upon receipt of Judge Duffy's opinion, plaintiff communicated with Judge Duffy, and presented affidavits and documentary evidence which conclusively established: (1) that plaintiff placed the order for the shares in question approximately one hour before the first announcement of the A & P litigation; (2) that upon learning of the litigation, plaintiff attempted to cancel his order for the shares, but was unsuccessful; and (3) that the total amount of plaintiff's purchases of A & P shares on the date in question was approximately $38,000, and not just a "token" investment which might be expected if made for the purpose of litigation. On the basis of these facts, plaintiff repeatedly requested Judge Duffy to set the record straight, by at least excising the offending footnote. Judge Duffy refused to alter his opinion or to remove the footnote, and instead forwarded a copy to the Disciplinary Board of the Supreme Court of Pennsylvania, apparently with the request that they conduct an investigation of plaintiff's conduct in the matter. The Disciplinary Board did investigate the matter, and on November 20, 1973, completely exonerated the plaintiff.

 Early in 1974, plaintiff became aware that Judge Duffy's opinion had been published in the Advance Sheets of Commerce Clearing House's "Trade Cases" service. Plaintiff promptly notified CCH of his contention that Footnote No. 1 of Judge Duffy's opinion was false and defamatory. CCH sought permission from Judge Duffy to delete the footnote, but Judge Duffy refused to consent. Thereupon, CCH, at plaintiff's request, revised the first page of the opinion by adding an "editor's note" in juxtaposition to Footnote No. 1, as follows:

 
"On November 20, 1973, the Disciplinary Board of the Supreme Court of Pennsylvania, acting pursuant to the request of the Honorable Kevin Thomas Duffy and after full investigation and review reached the final determination that Fred Lowenschuss, Esq. was not guilty of unprofessional conduct in violation of the Code of Professional Responsibility."

 On or about April 9, 1974, plaintiff became aware that Judge Duffy's opinion appeared in the Advance Sheets of Federal Supplement, published by the defendant. Plaintiff immediately protested to the defendant that Footnote No. 1 was false and defamatory. Defendant communicated with Judge Duffy, Judge Duffy refused to consent to any change in the opinion as written, and the opinion was published without change. Lowenschuss v. Kane, 367 F. Supp. 911 (S.D.N.Y.1973).

 Plaintiff concedes that the doctrine of absolute judicial immunity precludes any successful claim against Judge Duffy. Garfield v. Palmieri, 297 F.2d 526 (2d Cir. 1962), affirming 193 F. Supp. 137 (S.D.N.Y.1961). But plaintiff misconceives the true scope of the immunity doctrine when he argues that the publication by the defendant of Judge Duffy's absolutely privileged opinion is either not protected at all, or protected only conditionally, by the same privilege. In my opinion, the publisher of what purports to be neither more nor less ...


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