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United States District Court, Eastern District of Pennsylvania

December 23, 1999


The opinion of the court was delivered by: Dalzell, District Judge.


In a lawsuit that could only have been filed in late twentieth-century America, a newly minted millionaire has filed this defamation action against the producer of a seven-and-a-half minute satirical videotape that in fifty-nine film clips spoofs the transaction in which the plaintiff acquired his riches. In order to test the legal viability of plaintiff's claim, as defendant invites us to do, we must view the video with care against the screen of its public exhibition.

I. Background

A. Facts*fn1

Plaintiff Thomas J. Karl, Esquire, was the Vice-President, General Counsel, and Secretary for Renal Treatment Centers, Inc. ("RTC") until that firm's February, 1998 merger with Total Renal Care Holdings, Inc. ("TRC"). Karl declined offers to join the post-merger management team. Subsequent to the merger and Karl's departure, defendant Donaldson, Lufkin & Jenrette Company ("DLJ"), the investment banker that served as TRC's adviser for the deal, organized a dinner at the Four Seasons Resort in Carlsbad, California, to which were invited employees and officers of TRC, RTC, and PricewaterhouseCoopers L.L.P. along with these individuals' spouses and significant others. Karl and other members of the RTC management team were not invited to this dinner, which was intended to mark the occasion of the TRC/RTC merger, nor were they informed or consulted about it.

It was at this dinner that the allegedly defamatory videotape was first shown. Karl claims that he was defamed when the videotape narrator's statement, "RTC's General Counsel, Tom Karl, exercised his modest severance package", was heard over footage from Raising Arizona showing an Old West-style bank robbery. In addition, Karl claims that DLJ caused further copies of the videotape to be distributed, that they were then forwarded to employees of DLJ and TRC, and that the video has therefore likely been shown on one or more occasions unknown to Karl, further defaming him.

B. Procedural Posture

The instant complaint, alleging diversity-based defamation, was filed on June 23, 1999, and DLJ moved to dismiss it on August 18, 1999. Following Karl's opposition, the parties filed reply and sur-reply briefs. Among the many issues that divided the parties, Karl questioned the propriety of considering, in the context of a Fed.R.Civ.P. 12(b)(6) motion, the videotape itself, a copy of which DLJ had supplied with its motion to dismiss, and offered doubts about the authenticity of the tape that DLJ supplied to us. There also seemed to be an Erie Klaxon question of whether California or Pennsylvania law applies here. In order to aid in the resolution of this matter, on November 5, 1999 we afforded the parties leave to conduct discovery limited to the issue of the tape's authenticity, and we provided notice to the parties that we would convert the motion to dismiss to a motion for summary judgment on the limited question of the contents of the videotape. See Fed.R.Civ.P. 12(b). We also required that the parties stipulate to the identity of the various film and television clips used in the videotape and granted leave to them to file memoranda of law on the choice of law issue.

The parties provided us with a stipulation as to the identity of the film clips, and have stated that the videotape DLJ supplied to us is, in fact, a duplicate of that shown at the dinner.*fn2 We also granted Karl leave to file an amended complaint,*fn3 which he did on November 30, 1999, and have allowed the parties to supplement their pleadings on the motion to dismiss to address any new issues that the amended complaint arguably implicated.

We now consider DLJ's motion to dismiss under Fed.R.Civ.P. 12(b)(6), partially converted to a motion for summary judgment for the limited purpose of examining the allegedly defamatory videotape.*fn4

II. Legal Analysis*fn5

A. Choice of Law

As discussed above, we invited the parties to supply memoranda of law concerning the law applicable in this case. Though there was no dispute that Pennsylvania choice of law rules*fn6 will govern here, see Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), neither party was willing to commit to the application of either Pennsylvania or California law. DLJ argues, after adumbrating the defamation law of both states, that there is no conflict between the law of the two jurisdictions. Karl argues that given the nature of Pennsylvania choice of law rules, a decision on choice of law would be "premature" on this "undeveloped record," Mem. of Law of Pl. Regarding the Substantive Law to be Applied in This Case at 1.*fn7 Because the parties do not agree on a choice of law, and because the result here does not depend on whether California or Pennsylvania jurisprudence governs the analysis, we will cite law from both jurisdictions as we move forward.

B. The Law of Defamatory Meaning

DLJ moves for dismissal on the ground that the videotape does not admit of defamatory meaning. That the communication alleged to be defamatory must in fact be of defamatory character is naturally one of the elements of the defamation tort, see Cal.Civ.Code § 45; 42 Pa.Cons.Stat. Ann. § 8343(a)(1), and this is a matter of law for the court, in the first instance,*fn8 to decide, see Couch v. San Juan Unified Sch. Dist., 33 Cal.App.4th 1491, 39 Cal.Rptr.2d 848, 854 (Ct.App. 1995); MacElree v. Philadelphia Newspapers, Inc., 544 Pa. 117, 674 A.2d 1050, 1053 (1996).

In California, defamatory character is defined by statute as matter that "exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." Cal.Civ.Code § 45 (defining libel). Similarly, in Pennsylvania,

  [a] communication is defamatory if it 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. . . . A
  communication is also defamatory if it ascribes to
  another conduct, character or a condition that would
  adversely affect his fitness for the proper conduct
  of his proper business, trade or profession.

Maier v. Maretti, 448 Pa. Super. 276, 671 A.2d 701, 704 (1995).

In considering the defamatory nature of the communication, we must look to the way in which the communication would have been interpreted by the reasonable, average person in its intended audience, see Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 228 Cal.Rptr. 206, 721 P.2d 87, 91 (1986); Maier, 671 A.2d at 704, and in this inquiry the nature of the audience is therefore significant.*fn9 More broadly, though, the entire context of the communication must be taken into account in evaluating the potentially defamatory character, see Baker, 228 Cal.Rptr. 206, 721 P.2d at 90-91 (discussing California's "totality of the circumstances" test, which includes first an examination of the language and then consideration of the context in which the communication was made); Corabi v. Curtis Publ'g Co., 441 Pa. 432, 273 A.2d 899, 906 (1971). This means that the communication must be examined in light of all the material surrounding it, see Baker, 228 Cal.Rptr. 206, 721 P.2d at 91; Corabi, 273 A.2d at 906.

Simply because a communication "annoy[s]or embarrass[es] a person" does not mean that it is defamatory as a matter of law. Maier, 671 A.2d at 704. On the other hand, simply because a communication is funny does not mean that it cannot be defamatory. If a communication has two possible meanings, one innocent and one defamatory, then the trier of fact must consider how the communication should be interpreted, see Polygram Records, Inc. v. Superior Ct., 170 Cal.App.3d 543, 216 Cal.Rptr. 252, 256-57 (Ct.App. 1985), and with comedy the proper inquiry for the court is "whether the communication in question could reasonably be understood in a defamatory sense by those who received it." Id. at 259; cf. Martin v. Municipal Publications, 510 F. Supp. 255, 258 (E.D.Pa. 1981) (holding, under Pennsylvania law, that a communication purportedly intended as a "spoof" or "satire" could nonetheless have defamatory meaning).*fn10

With this law as our analytical framework, we can now move to discuss the communications alleged as defamatory here as well as the context in which it was published.

C. The Videotape and Its Context

Since we are evaluating the communication on a motion to dismiss, we must set out the facts in the light most favorable to Karl. As noted at the outset, the videotape was shown at a dinner attended by employees of DLJ, TRC, and PricewaterhouseCoopers L.L.P., along with their spouses. Karl alleges that while this dinner may have been held to mark the occasion of the TRC/RTC merger, we should not make the mistake of inferring that the dinner was "celebrating" the merger. Instead, this dinner at the Four Seasons Resort was held, Karl suggests, at a time of "finger-pointing" and "ugly reprisals" as shareholder lawsuits alleging securities fraud had been filed against TRC in the wake of the merger. Karl would therefore have us infer that DLJ's alleged failure to invite Karl to the dinner was far from a coincidence, but rather was intended to keep Karl away from the forum in which the videotape was shown. Having thus set the context of that night in the light most favorable to Karl, we may now discuss the videotape shown.*fn11

The videotape was produced by Barrington Communications, a Los Angeles firm, under the direction of DLJ. The seven minute, fifty second-long video, entitled "Merge Wars", consists of a voice-over narration*fn12 describing the events that led to the founding of TRC, TRC's growth over time, and its ultimate merger with RTC. The narration mentions the names of eighteen people, predominantly employees of DLJ or TRC, in the course of explaining the various transactions and events involved, and particularly focuses on the story of Victor Chaltiel, TRC's founder. Under this narration, the video shows*fn13 fifty-nine separate clips from various movies and two television shows which serve to illuminate the events the narrator mentions.

The videotape's makers demonstrated a broad reach*fn14 in selecting the clips used in the video, as the following list (to which the parties have stipulated), presented in order of appearance,*fn15 shows:

  [Music from] Star Wars; The Ten Commandments [1956
  version]; Pinky and the Brain; Mouse Hunt; The
  Attack of the Killer Tomatoes; The Candidate; Bean;
  101 Dalmatians [the recent release, not the
  cartoon]; [Mel Brooks's] History of the World [Part
  I]; Airplane II; Blazing Saddles; Animal House;
  Chaplin; Breaking Away; The Beverly Hillbillies [the
  motion picture]; Liar

  Liar; Planes, Trains and Automobiles; The Brinks
  Job; The Great Dictator; Abbott & Costello — source
  unknown; Scarface; Brewster's Millions; The Getaway;
  Brewster's Millions; How to Succeed in Business
  Without Really Trying; Don Juan DeMarco; Tootsie;
  Monty Python's The Meaning of Life; Big; The Great
  Dictator; Fast Times at Ridgemont High; High Noon;
  The Wizard of Oz; Grumpy Old Men; Mouse Hunt; Waiting
  for Guffman; The Paper Chase; [beefcake] beach shots
  — source unknown; Lady on a Train; Dirty Rotten
  Scoundrels; Bridge on the River Kwai; A Night to
  Remember; The Flintstones [John Goodman version];
  Dumb and Dumber; The Firm; The Empire Strikes Back;
  Planes, Trains and Automobiles; Help!; Rocky &
  Bullwinkle; The Getaway; Romancing the Stone; The
  Godfather; apes shaking hands — source unknown;
  Raising Arizona; Varig 727 landing — source
  unknown; Face/Off; Dick Tracy; LA Story; storefront
  with substitute sign — source unknown; Apollo 13
  rocket taking off — source [said to be]

The humorous impact of the video — and even Karl concedes that "[m]uch of the portrayals and commentary . . . were light-hearted", First Am.Compl. ¶ 4 — largely stems from the disjunction between the "straight" narration*fn17 and the scenes shown behind it, as several examples will show. Early in the video, for instance, we hear, "In 1994, David Dennis*fn18 proposes to Tenet Health that it divest medical ambulatory care, one of its hottest properties." The last portion of this line is said against the backdrop of a scene from the film Mouse Hunt in which two characters enter a decrepit and cobwebbed building and remark, "What a dump!" Later we hear, "TRC was a sure-fire investment that everyone wanted a piece of" against a clip from the film Chaplin in which a man on a music hall stage is pelted with vegetables and refuse from the audience. The narrator's statement, "And fortunately, Bob and Victor hit it off right from the start", is paired with a clip from Waiting for Guffman in which a man shouts into a telephone, "I just hate you, and I hate your ass face!" And so on.

Moreover, the video contains many clips which contrast the discussion of a particular individual's acts with clips showing behavior of a different sort. "Chet Mehta preps Victor for an interview on CNBC" is spoken over a scene from Dumb and Dumber in which the title characters are given their trademark haircuts. "Finally, Rich finished the due diligence" is paired with a clip from Bridge on the River Kwai in which a bedraggled Colonel Nicholson is pulled out of solitary confinement by two Japanese guards. "David Dennis displayed his knowledge of dialysis" is coupled with the famous scene from Monty Python's The Meaning of Life in which Michael Palin's hospital administrator walks into a delivery room, complete with a patient in stirrups and berobed physicians, and remarks, "Ah, I see you have a machine that goes `bing'!"

Near the end of the video is the seven-and-a-half second clip that allegedly defames Karl. The narration for this scene says, "RTC's General Counsel, Tom Karl, exercised his modest severance package." The images behind these words are taken from a bank robbery scene in the Coen Brothers' comedy, Raising Arizona. We first see two men wearing tan dusters and holding shotguns. The video's producers then cut to a floor-level shot, taken from behind the robbers, of the bank patrons getting on the ground.*fn19 We then see bundles of cash being put into a bag (evidently by a teller), and quickly we see one of the robbers taking the bag of money from the teller window.

For the sake of completeness, we also describe the immediate context of this portion of the tape. The two preceding scenes are: "The proxy solicitation [of TRC shareholders to approve the merger with RTC] was just good, old-fashioned salesmanship" said over the famous clip from The Godfather in which Don Corleone (Marlon Brando) says, "I'm going to make him an offer he can't refuse"; and, "And in the end, Victor and TRC shareholders came to terms and completed the deal" voiced over stock footage of two apes touching hands. After the scene about Karl, we hear, "And finally, Victor's plane arrived" over images first of a VARIG airlines jet landing and second of a plane crash-landing through a warehouse taken from the movie Face/Off.

D. Does the Videotape Have Defamatory Character?

Given the law discussed above, and the context of the videotape that we have just at length rehearsed, the question for us to consider boils down simply to whether anyone in the dinner audience viewing the videotape could reasonably have considered it to expose Karl to "hatred, contempt, ridicule, or obloquy," or to harm his reputation, or to "lower him in the estimation of the community." For the reasons discussed below, we find that no reasonable audience member could have so considered this portrayal, and thus Karl's suit for defamation must fail.

As discussed and illustrated above, the overall tone of the video is lighthearted, and Karl concedes that this is so. Karl claims, however, that "in referring to Mr. Karl, the portrayal became vicious and derogatory in tone and content crossing far over the line", First Am.Compl. ¶ 4. In essence, Karl alleges that for just these seven-and-a-half seconds, the video suddenly turns serious in order to savage only his reputation. The reality, however, is that the portrayal of Karl is indistinguishable from how others mentioned in the video are depicted.

For one thing, Karl is not the only one in the video who is associated with a film clip showing criminal activity. As noted above, the "sale" of the RTC/TRC merger to TRC shareholders by Victor Chaltiel was exemplified by the Godfather clip where the head of the Corleone crime family discusses making "an offer he can't refuse." In a discussion of TRC's going public in 1995, the narrator states, "The deal proved good for everyone", over a clip from The Brinks Job showing the successful robbers cavorting in piles of money. The image of Al Pacino's Scarface, from the film of the same name, counting out huge piles of his drug money is shown under, "Through the efforts of [TRC] CFO John King. . . ." Karl's fellow RTC executives, Bob Mayer and Fred Jansen, are portrayed as Steve Martin's and Michael Caine's con artists from Dirty Rotten Scoundrels, with Steve Martin's character saying (with respect, for the purposes of the video, to the TRC/RTC merger), "I say, let them give us money; let's live off of them for a while." Also, a shot of gangster Big Boy Caprice (Al Pacino) and his henchmen from Dick Tracy is shown under, "What's in store for Victor and [unintelligible*fn20] TRC?"

Moreover, Karl is not the only RTC executive who is mentioned in the video. Two RTC "principals", Bob Mayer and Fred Jansen, are portrayed, as discussed above, as con artists and also as "grumpy old men" in a clip from the movie of the same name.*fn21

Karl is also not the only one whose financial package is discussed in the video. As the narrator intones, "Victor [Chaltiel] displayed characteristic flexibility throughout, particularly when questioned about his options package," we see a scene from Planes, Trains and Automobiles in which a man (probably Steve Martin's character) throws a fit of anger in a parking lot, shouting "Goddamn it! . . . Goddamn it! . . ."

The bottom line is that Karl's segment is, in tone and content, exactly the same as heard and seen over and over again in the rest of the video. Karl's portrayal simply cannot be distinguished from the pack.

Karl nevertheless urges us that his portrayal would have been interpreted by the audience to mean that his exercise of the severance package was in fact nothing short of an robbery in which he took money he did not deserve. The video, says Karl, actually ascribed to him "unethical and immoral felonious criminal conduct," which lowered him in the estimation of the health care and acquisition professionals who viewed it, First Am.Compl. ¶¶ 21-26. According to Karl, this portrayal was part of a larger scheme to discredit him because he refused to participate in the new management team, and because business problems from the merger were beginning to develop. He also argues that he was singled out for the alleged ridicule despite the undisputed reality that other former RTC executives had even larger severance packages than his $210,000.*fn22

True though all this may be — and as we must assume it to be — it is beside the point. Although we certainly must take the larger context of the video into account, including the identity of the audience and the known relationships between the parties, we must also consider the context and totality of the publication itself. Here, the allegedly defamatory video constituted less than two percent of a larger communication, and the substance of this larger communication makes clear to any reasonable observer that the portrayals, including that of Karl, are not to be taken literally or as a statement of fact or opinion. While, as we discussed above, humorous things can be defamatory, the type of humor demonstrated in this video is clearly that of the ridiculous. Only if we were willing to hold — which we do not — that a reasonable viewer could have believed that the TRC management are Mafiosi capos, or that Victor Chaltiel and the TRC shareholders are chimpanzees, or that John King is a drug lord, could we find that a reasonable viewer could have been left with the belief that the videotape conveys the message that Karl's severance gains were ill-gotten or that Karl's reputation could thereby have been damaged.*fn23

No one, even those familiar with the underlying transactions or with the possible tensions between Karl and DLJ/TRC, could have reasonably interpreted the Karl segment as anything other than a joke. Although Karl's pleadings may show an overall context in which DLJ/TRC had a motive to defame Karl, it does not logically or legally follow that the videotape, merely because it was produced by DLJ and shown to DLJ and TRC employees, necessarily had defamatory content. Again, and at the risk of repetition, the Karl video segment is clearly, to any reasonable viewer, a joke indistinguishable from the fiftyeight other jokes in the video, and its images of bank robbery cannot be reasonably imputed to defame Karl's character.

Karl emphasizes in his pleadings that the additional showings of the tape in as-yet undisclosed locations to as-yet undisclosed audiences means that it would be improper for us to dismiss his case at this point, since we are, he avers, not in a position to evaluate the potentially defamatory impact that the tape had on these unknown viewers. However, we need not know the identity and affiliation of each audience member to make our decision about this videotape: no matter who the other audiences are, this depiction has no defamatory character.

In fact, having found that the audience at the dinner could not reasonably have found the videotape to be defamatory, we can be confident that audiences more removed from the transaction in question could equally not reasonably perceive defamation here. This is so because Karl's complaint relies on a distinction between the others portrayed in the videotape and himself. But because, as we discuss above, the tone and content of Karl's depiction is identical to that used for the seventeen other Masters of the Universe named in the tape, the distinction could only conceivably be perceptible if the viewer has information not presented in the videotape about the identities and roles of these individuals. To the extent that the as-yet unknown viewers of the tape were familiar with the transaction, they would be in the same posture as the audience members at the dinner, who we have already concluded could not reasonably have perceived defamation. To the extent such viewers were ignorant of the deal, they reasonably would never consider that these were "criminals" offered up for obloquy or contempt.

In short, reasonable viewers would see only something harmlessly funny, and, unlike Karl, they would laugh.

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