UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Olivia Karpinski & Paul Edalat

v. Case No. 18-cv-1214-PB Opinion No.

Union Leader Corporation, Patricia J. Grossmith, & Trent E. Spiner

O R D E R

Olivia 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. I. BACKGROUND 1

Olivia 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 docket”].

Karpinski responded with counterclaims of her own. 2 In

pleading her claims, she details an incident in November 2015,

when

1 The facts recounted are drawn from plaintiffs’ complaint, public records, documents central to the disputed claims and “documents sufficiently referred to in the complaint.” See Freeman v. Town of Hudson,

(1st Cir. 2013) (quoting Watterson v. Page,

(1st Cir. 1993)) (internal quotation marks omitted).

2 Karpinski’s counterclaims included sex discrimination, “sexual harassment-hostile work environment,” retaliation for reporting sexual harassment, fraud, and negligent misrepresentation.

2 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

. Karpinski also brought claims against

Cahill for common law assault and common law battery that are

based in part on the unwanted kiss. See

.

Karpinski 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

3 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

71-77.

Cahill 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 3 defines as “intimate parts,” see

(d), his counsel asked Karpinski:

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.” A. No. Q. How about the genital areas? A. No. Q. How about the buttock areas? A. No.

Cahill 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,

3 The statute is captioned “Sexual battery; damages; equitable relief.” I refer to the statute in this Memorandum and Order as the California civil sexual assault statute.

4 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.

Denterlein 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.

Four 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

5 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.

Doc. 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.

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.

The 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.

II. STANDARD OF REVIEW

In considering a motion to dismiss under Federal Rule of

Civil Procedure Rule 12(b)(6), I “accept as true the well-

6 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.,

(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,

(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,

(2009) (citations omitted).

In 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,

(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,

(quoting

7 Watterson,

(1st Cir. 1993)) (internal quotation

marks omitted).

In an appropriate case, an affirmative defense may be

adjudicated on a motion to dismiss. See, e.g., Blackstone

Realty LLC v. FDIC,

(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.,

(1st Cir. 2003).

III. ANALYSIS

Karpinski and Edalat base their claims on four allegedly

false and defamatory statements made in the Union Leader

article:

Statement 1:

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.

Complaint, Doc. No. 1 ¶¶ 40, 41.

Statement 2:

[W]hile [Karpinski] was working for PharmaPak, she traveled to Las Vegas and, along with Edalat, wined and dined potential investors for Sentar Pharmaceuticals, another company formed by Edalat. PharmaPak was billed for the expenses, according to Cahill.

Complaint, Doc. No. 1 ¶¶ 40, 41.

8 Statement 3:

Edalat and Karpinski also allegedly planted THC and marijuana in the office of the PharmaPak’s chief scientist and then telephoned Irvine police to falsely report that the scientist and Cahill were manufacturing and distributing illegal drugs, court records state.

Complaint, Doc. No. 1 ¶¶ 38, 39.

Statement 4:

Edalat has accused Cahill of sexually harassing Karpinski, but under oath she later admitted the allegations were baseless, according to court records.

Complaint ¶¶ 35, 36.

I begin by determining whether any of these statements can

support claims for defamation or false light invasion of

privacy. I then turn to defendants’ challenges to plaintiffs’

conspiracy and Consumer Protection Act claims. 4

A. Defamation and False Light Invasion of Privacy Claims

Defendants argue that all four of the statements that serve

as the basis for plaintiffs’ defamation and false light claims

are protected by the fair report privilege because they fairly

4 Plaintiffs also assert a separate cause of action for respondeat superior that seeks to hold the Union Leader vicariously liable for the torts of its employees. Because, as I explain below, the Union Leader is protected by the fair report privilege, it cannot be held liable on a respondeat superior theory even if respondeat superior can be pleaded as a separate cause of action.

9 summarize statements made in court filings in the Cahill

litigation.

The fair report privilege is a conditional privilege that

protects the “publication of defamatory matter concerning

another in a report of an official action or proceeding . . . if

the report is accurate and complete or a fair abridgement of the

occurrence reported.” Hayes v. Newspapers of N. H., Inc.,

(1996) (quoting Restatement (Second) of Torts §

611 (1977)). Because of the public interest in access to

official proceedings, “the privilege exists even though the

publisher himself does not believe the defamatory words he

reports to be true and even when he knows them to be false.”

Restatement (Second) of Torts § 611 cmt. a (1977). A defendant

who asserts the privilege bears the burden of “establishing its

applicability, and the determination of whether the defendant

has carried this burden is for the trial court.” Thomas v.

Telegraph Publishing Co.,

(2007).

A report need not be verbatim to be protected by the

privilege; it is enough if it gives “a rough-and-ready summary

that is substantially correct.” Hayes,

(citation omitted). In other words, a “statement is considered

a fair report if its ‘gist’ or ‘sting’ is true, that is, if it

produces the same effect on the mind of the recipient which the

precise truth would have produced.” Thomas,

10 (quoting Yohe v. Nugent,

(1st Cir. 2003)

(applying Massachusetts law)). The report must be not only

accurate; it must also be fair. Id.; Restatement (Second) of

Torts § 611 cmt. f (1977) (“Even a report that is accurate so

far as it goes may be so edited and deleted as to misrepresent

the proceeding and thus be misleading.”). 5

Karpinski and Edalat argue that the fair report privilege

does not apply here for several reasons. None of their

arguments persuade.

1. Fair and Accurate Report

Plaintiffs first argue that the fair report privilege does

not apply because the four challenged statements do not fairly

summarize statements made during the Cahill litigation. This

argument is clearly incorrect with respect to three of the four

statements. The fourth statement requires closer analysis.

5 Although the New Hampshire Supreme Court has not determined whether the fair report privilege applies to false light invasion of privacy claims, I am confident that the court would apply the privilege to such claims. New Hampshire has largely adopted the Restatement (Second) for its law of defamation. See, e.g., Thomas,

. The Restatement extends the fair report privilege to false light claims. See Restatement (Second) of Torts § 652G (1977) (“The rules . . . on the special privileges stated in §§ 611 and 612[] apply to the publication of any matter that is an invasion of privacy.”). And the same rationale that underlies the use of the privilege for defamation, namely that a well-informed citizenry requires the reporting of fair and accurate news, applies to false light invasion of privacy. See Hayes,

.

11 Defamatory Statement 1:

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.

Defamatory Statement 2:

[W]hile [Karpinski] was working for PharmaPak, she traveled to Las Vegas and, along with Edalat, wined and dined potential investors for Sentar Pharmaceuticals, another company formed by Edalat. PharmaPak was billed for the expenses, according to Cahill.

There is no dispute that the first statement correctly

reports that Karpinski was “among those being sued in California

in a fraud case.” Plaintiffs nevertheless offer other quibbles.

First, they argue that the second statement is not protected by

the privilege because Karpinski and Edalat “never jointly ‘wined

and dined’ investors.” But there is no material difference when

considering defamation and false light invasion of privacy

claims between defrauding a company alone or in tandem.

Karpinski and Edalat next argue that neither statement is

protected because they never improperly diverted funds from

Pharma Pak. This argument is based on an apparent

misunderstanding of the privilege. The privilege does not turn

on whether the underlying allegations are true. What matters is

whether the article fairly reported on allegations made in the

Cahill litigation. It did. See Cahill Docket, Second Amended

Complaint, Doc. No. 142 ¶ 83 (“Edalat and Karpinski promoted

12 Global Holdings . . . by traveling to Las Vegas, Nevada and

Beverly Hills on frequent occasions and, using Pharma Pak funds,

lavishly entertained prospective customers and investors for

Global Holdings . . . .”). Because statements 1 and 2 fairly

describe allegations made in the Cahill litigation, the fair

report privilege shields the defendants from liability for those

statements.

Defamatory Statement 3:

Edalat and Karpinski also allegedly planted THC and marijuana in the office of the PharmaPak’s chief scientist and then telephoned Irvine police to falsely report that the scientist and Cahill were manufacturing and distributing illegal drugs, court records state.

Karpinski and Edalat attack the third statement by arguing

that they did not plant illegal substances on Pharma Pak

property or file a false police report. Once again, however,

the question is whether Cahill alleged so in a pleading and

whether the Union Leader accurately reported that allegation.

The answer to both questions is yes. In his second amended

complaint, Cahill alleged that

Edalat and Karpinski . . . planted, in or around February 15, 2016, THC and marijuana, both illegal controlled substances, in the offices of the chief scientist of Pharma Pak and then called the local Irvine Police Department in order to cause his arrest . . . .

Cahill docket, Second Amended Complaint, Doc. No. 142 ¶ 100.

The Union Leader provided a “rough-and-ready” summary of the

13 complaint’s allegation and thus the third statement is also

protected by the fair report privilege.

Defamatory Statement 4:

Edalat has accused Cahill of sexually harassing Karpinski, but under oath she later admitted the allegations were baseless, according to court records.

The fourth challenged statement presents a somewhat more

complex problem. This is because although Cahill filed a

pleading alleging that Karpinski had admitted under oath that

her sexual assault charge was false, see Cahill docket, Doc. No.

94-1 at 12-13, he never claimed that Karpinski had conceded that

her sexual harassment claim was meritless. Thus, the Union

Leader does not correctly describe the state of the pleadings on

this narrow point because it fails to distinguish between a

civil sexual assault claim and a sexual harassment claim.

I am not persuaded that this minor misreading of an

exceedingly complex docket is sufficient to deprive the

defendants of the fair report privilege. To an attorney, the

difference between a violation of the California civil sexual

assault statute and a state or federal claim of sexual

harassment may seem obvious. But to an ordinary citizen of

“common and reasonable understanding,” those terms have a less

definite, and more overlain, meaning. Cf. Ben Hamida v.

Gonzales,

, 739 n.7 (6th Cir. 2007) (rejecting claim

that witness was inconsistent by first alleging sexual abuse and

14 later testifying he was merely harassed because “he may have

simply been confused by the difference between ‘sexual abuse’

and ‘sexual harassment,’ just as he was confused by the

difference between ‘sexual assault’ and ‘sexual harassment’ with

respect to police officers’ conduct toward his mother”); see

also Gavin Keene, Preserving VAWA’s “Nonreport” Option,

, 1093 & n.26 (2018) (“Public discourse, influenced

by popular culture movements and media coverage, frequently

conflates distinct forms of sexual misconduct.”) (collecting

sources). And it is the common understanding, not the

attorney’s, that controls this inquiry.

Indeed, Karpinski’s own public statements about the

litigation appear to confuse sexual assault and sexual

harassment. On Instagram, she announced that she “was sexually

assaulted [by Cahill] after being given a promotion.” Cahill

docket, Doc. No. 95-6. Her press release says that “Former Vice

President of Sales Olivia Karpinski also alleges sexual

harassment and sexual assault by Cahill.” Cahill docket, Doc.

No. 95-8. The mistake is understandable: her allegation of

unwanted contact satisfies the elements of common law assault

and an unwanted kiss is fairly perceived as a sexual act. To

treat sexual harassment and sexual assault as synonyms is to

err, but it does not deprive defendants of the fair report

privilege.

15 The Cahill docket contained hundreds of filings, including

court orders, depositions, and memoranda of law. It is a

complicated docket, and the Union Leader could have better

expressed the claims and counterclaims in the case. But a

“report need not track or duplicate official statements to

qualify for the [fair report] privilege; rather, it need give

only a ‘rough-and-ready’ summary that is substantially correct.”

Thomas,

(citing Hayes,

). The

report has done that here. 6

2. Judicial Action

Karpinski and Edalat next contend that the fair report

privilege does not apply because the privilege’s “judicial

action” requirement excludes preliminary court filings.

Assuming arguendo that the privilege does not apply to the

publication “of the contents of preliminary pleadings such as a

complaint or petition, before any judicial action has been

6 The fair report privilege also shields defendants from liability to Edalat for the fourth statement. Although Edalat claims that the statement is actionable as to him because it “makes him appear to be trivializing sexual harassment as a mere litigation tactic,” the litigation record in the Cahill case plainly includes multiple allegations that Edalat claimed that Cahill had sexually harassed Karpinski. See, e.g., Cahill docket, Doc. No. 95-15 (collecting Facebook posts). Because the fourth statement fairly summarizes allegations made in the Cahill litigation about Edalat, his claims are barred by the fair report privilege.

16 taken,” Restatement (Second) of Torts § 611 cmt. e. (1977), 7

plaintiffs’ argument fails because there was official action in

this case. The Second Amended Complaint was filed on December

16, 2016 and the article was published on June 4, 2017. In the

interim, the court issued a surfeit of orders including a merits

decision on the very complaint in question, see Cahill,

(C.D. Cal. Feb. 15, 2017) (granting in part and denying

in part motion of Karpinski, Edalat, and other defendants to

dismiss Cahill’s second amended complaint).

The judicial action requirement exists to protect against a

scheme in which a tortfeasor files a complaint to “establish[] a

privilege to publicize its content and then drop[] the action.”

Restatement (Second) of Torts § 611 cmt. e (1977); cf. Cowley v.

Pulsifer,

(1884) (Holmes, J.) (denying

privilege where newspaper published report of complaint before

it was docketed). No such scheme is present here. In any

7 Courts in other jurisdictions have discarded the judicial action requirement. See, e.g., Salzano v. N. Jersey Media Grp. Inc.,

(2010) (“We hold that the principles that inform the fair-report privilege brook no exception for initial pleadings, which fall squarely within the protective sweep of the privilege.”); Solaia Tech., LLC v. Specialty Pub. Co.,

(2006) (“In 1980, Illinois joined a growing trend, declining to place a judicial-action limitation on the privilege.”). I need not determine whether New Hampshire would follow this trend because defendants are entitled to the privilege even if judicial action is required before it may be claimed.

17 event, the court in the Cahill litigation exercised sufficient

oversight of the litigation to satisfy the judicial action

requirement.

3. Malice

Karpinski and Edalat also argue that defendants forfeited

the privilege because they acted with malice. Under New

Hampshire law, “actual malice cannot defeat the fair report

privilege, but common law malice can.” Thomas,

.

Actual malice is “subjective awareness of the falsity or

probable falsity of a statement,” while common law malice “is

ill will or intent to harm.”

.

Plaintiffs point to three paragraphs in their complaint

that purportedly allege common law malice. The first paragraph

asserts that defendants “acted maliciously and were well aware

that they published the foregoing false and/or misleading

statements of fact, and did so in the larger context of a one-

sided article aiming to (or substantially certain to) malign the

reputations” of the plaintiffs. Doc. No. 1 ¶ 44. This

allegation does not sufficiently distinguish between actual

malice and common law malice. It also fails to allege facts

that would support a conclusion that defendants acted with the

“ill will or intent to harm” that defines common law malice.

See Thomas,

. The other two allegations

similarly allege at most that defendants may have known the

18 article was inaccurate. See Doc. No. 1 ¶¶ 60, 61. Their

allegation of malice is therefore unable to pierce the

defendants’ privilege.

4. Reliance on Court Records

Plaintiffs suggested an alternative theory at the hearing

on the motion to dismiss. They posit that a person cannot claim

the fair report privilege if the report of a public proceeding

is based on information obtained from a third party such as

Denterlein. This contention finds no support in case law and is

at odds with the rationale underlying the privilege.

Plaintiffs primarily rely on Bufalino v. Associated Press,

(2d Cir. 1982), in which the Second Circuit held

that a news organization was not entitled to the privilege

because the record was devoid of evidence that it “relied upon

the official records which it [claimed] it accurately summarized

in its stories.” See

. In Bufalino, the Associated

Press published a defamatory article without relying on the

record of an official proceeding. Only after litigation began

did reporters search through various public records to dig up

statements corresponding to the story. The Second Circuit

rejected the district court’s theory that the privilege applied

“even if the reports were not relied upon and the accuracy of

the summary is mere coincidence.” See

19 Here, by contrast, the article purports to be a report on

the Cahill case and it is unquestionably based on court filings

in the court docket. Except for the sexual harassment-sexual

assault discrepancy, the article also closely tracks allegations

made in the litigation. Plaintiffs do not allege that the Union

Leader engaged in a post hoc fishing expedition for documents

that correspond to allegations made in the article. Thus,

Bufalino is plainly distinguishable.

Thomas, on which plaintiffs also rely, is likewise

inapposite. In Thomas, the defendant was able to identify

official records for some statements, but not for others. The

court found the privilege inapplicable to the statements that

came from “private conservations between [the reporter] and the

officers” rather than from official police reports. See Thomas,

. In our case, in contrast, there are no

statements that cannot be traced to pleadings in the Cahill

docket.

More importantly, plaintiffs’ argument cannot be reconciled

with the purpose that the fair report privilege was intended to

serve. The privilege exists to further the public’s interest in

knowing what government is doing. A reporter should not be

exposed to liability for providing a fair and accurate account

of a public proceeding simply because the account was drawn in

20 part from information about the proceeding that was obtained

from a third party.

In summary, plaintiffs’ defamation and false light invasion

of privacy claims must be dismissed because the statements on

which the claims are based are protected by the fair report

privilege.

B. Conspiracy Claim

New Hampshire recognizes a cause of action for civil

conspiracy, which is “a combination of two or more persons by

concerted action to accomplish an unlawful purpose, or to

accomplish some purpose not in itself unlawful by unlawful

means.” Jay Edwards, Inc. v. Baker,

(1987)

(quoting 15A C.J.S. Conspiracy § 1(1), at 596 (1967)).

Plaintiffs allege that defendants engaged in a conspiracy to

commit defamation and false light invasion of privacy. Because,

however, plaintiffs do not have a viable claim under either

theory against any of the defendants, their conspiracy claim

necessarily fails.

C. Consumer Protection Claim

The New Hampshire Consumer Protection Act (“CPA”) makes it

“unlawful for any person to use any unfair method of competition

or any unfair or deceptive act or practice in the conduct of any

trade or commerce within this state.” N.H. Rev. Stat. Ann.

§ 358–A:2; Fat Bullies Farm, LLC v. Devenport,

, 24

21 (2017). The statute exempts “[p]ublishers, broadcasters,

printers, or other persons engaged in the dissemination of

information or reproduction of printed or pictorial matter who

publish, broadcast, or reproduce material without knowledge of

its deceptive character.” N.H. Rev. Stat. Ann. § 358–A:3, IV.

The Union Leader published an article that was a fair account of

allegations made in the Cahill litigation. The complaint thus

does not sufficiently allege an unfair or deceptive act. Even

if it did, there would still be no plausible allegation that the

Union Leader had “knowledge” of that deception. Accordingly,

plaintiffs’ CPA claim also fails to state a viable claim for

relief.

IV. CONCLUSION

Defendants’ motion to dismiss (Doc. No. 7) is granted.

SO ORDERED.

/s/ Paul Barbadoro__________ Paul Barbadoro United States District Judge

July 16, 2019

cc: Matthew R. Johnson, Esq. Gregory V. Sullivan, Esq.

22