IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 10-16061 ZL TECHNOLOGIES, INC., Plaintiff-Appellant, v.

GARTNER GROUP, INC. and CAROLYN DICENZO, Defendants-Appellees. On Appeal from the United States District Court for the Northern District of California Case No. 5:09-cv-02393-JF The Honorable Jeremy Fogel, Presiding APPELLANT’S OPENING BRIEF JAMES M. WAGSTAFFE (CA BAR NO. 95535) MICHAEL K. NG (CA BAR NO. 237915) DANIEL A. ZAHEER (CA BAR NO. 237118) KERR & WAGSTAFFE LLP 100 Spear Street, Suite 1800 San Francisco, CA 94105 Tel: (415) 371-8500 Fax: (415) 371-0500 Attorneys for Plaintiff-Appellant ZL TECHNOLOGIES, INC.

Corporate Disclosure Statement Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, PlaintiffAppellant ZL Technologies, Inc. certifies that no publicly held corporation owns 10% or more of the stock of ZL Technologies, Inc.

TABLE OF CONTENTS Page I. INTRODUCTION...............................................................................................1

II. JURISDICTIONAL STATEMENT ...................................................................2 III. ISSUE PRESENTED FOR REVIEW ................................................................2 IV. STATEMENT OF FACTS .................................................................................3 V. STATEMENT OF THE CASE .........................................................................10 VI. STANDARD OF REVIEW ..............................................................................12 VII. SUMMARY OF ARGUMENT ........................................................................13 VIII. ARGUMENT .................................................................................................14 A. DISMISSAL IS WARRANTED ONLY IF NO REASONABLE JUROR COULD CONCLUDE THAT THE REPORTS IMPLY A FACTUAL ASSERTION ...........................................................................14 OPINIONS ARE ACTIONABLE IF THEY IMPLY AN UNDISCLOSED FACTUAL BASIS ............................................................18 THE TOTALITY OF CIRCUMSTANCES PRECLUDE DISMISSAL OF THE COMPLAINT .............................................................................25 1. 2. 3. D. Broad Context ...........................................................................25 Specific Context ........................................................................29 Susceptibility to Being Proven True or False ...........................30

B. C.

THERE IS NO EXEMPTION FROM DEFAMATION LIABILITY FOR NON-TRANSPARENT ANALYSIS .....................................................32

IX. CONCLUSION .................................................................................................35

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TABLE OF AUTHORITIES Cases Page

al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) ......................................................................... 12, 22 Condit v. National Enquirer, Inc., 248 F.Supp.2d 945 (E.D. Cal. 2002) ............................................................. 20, 23 Doe v. Untied States, 419 F.3d 1058 (9th Cir. 2005) ....................................................................... 12, 15 Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144 (2d Cir. 2000) .................................................................... 16, 21, 26 Flentye v. Kathrein, 485 F.Supp.2d 903 (N.D. Ill. 2007)......................................................................24 Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002) ................................................................. 15, 16, 34 Gardner v. Martino, 563 F.3d 981 (9th Cir. 2009) ......................................................................... 30, 32 Gill v. Hughes, 227 Cal. App. 3d 1299 (1991) ..............................................................................21 Johnson v. Clark, 484 F.Supp.2d 1242 (M.D. Fla. 2007) .................................................................24 Kaelin v. Globe Communications Corp., 162 F.3d 1036 (9th Cir. 1998) ....................................................................... 22, 23 Kelly v. Schmidberger, 806 F.2d 44 (2d Cir.1986) ....................................................................................15 Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) ................................................................. 17, 25, 30 Manufactured Home Communities, Inc. v. County of San Diego (“MHC”) 544 F.3d 959 (9th Cir. 2008) ........................................... 15, 16, 21, 22, 24, 31, 35 McBride v. Merrell Dow & Pharms Inc., 717 F.2d 1460 (D.C.Cir.1983) .............................................................................15 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) .............................................................. 2, 13, 16, 18, 28, 29, 30 Mzamane v. Winfrey, 693 F.Supp.2d 442 (E.D. Pa. 2010)......................................................................21 ii

Overstock.com, Inc. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688 (2007) .................................................................. 24, 28, 29 Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995) ....................................................... 15, 19, 27, 28, 30 Posadas v. City of Reno, 109 Nev. 448 (1993) .............................................................................................15 Pub. Utility Dist. No. 1 v. Idacorp Inc., 379 F.3d 641 (9th Cir. 2004) ................................................................................13 Rodriguez v. Panayiotou, 314 F.3d 979 (9th Cir. 2002) ............................................................. 10, 14, 16, 31 Standing Committee on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995) ....................................................... 19, 28, 32, 33, 34 Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110 (9th Cir. 2003) ..............................................................................21 Swengler v. ITT Corp., 993 F.2d 1063 (4th Cir. 1993) ..............................................................................28 Unelko Corp. v. Rooney, 912 F.2d 1049 (9th Cir. 1990) ..................................................... 13, 17, 19, 20, 22 Statutes 28 U.S.C. § 1291 ........................................................................................................2 28 U.S.C. § 1332 ........................................................................................................2 Other Authorities 1 Robert D. Sack, Sack on Defamation § 4:3.1 (4th ed. 2010) ...............................25 2 Callman on Unfair Competition Trademarks & Monopolies § 11:5 (4th ed. 2010) ............................................................................................20 Restatement (Second) of Torts § 566 cmt. c ............................................... 24, 32, 33

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I.

INTRODUCTION Appellee Gartner, Inc., a technology research and consulting firm, publishes

the Magic Quadrant Report (“the Report”), a product guide that is relied upon by large enterprises to make critical software purchasing decisions. Gartner claims that the Report is the end result of a sophisticated and reliable analysis that, through consideration of a vast quantity of undisclosed factual data, tells Gartner’s readers which is the best software product to buy. However, in spite of its assurances regarding the reliability of the Report, Gartner has repeatedly and falsely claimed that products sold by Appellant ZL Technologies, Inc. lag far behind its competitors’ products in terms of objective performance. Gartner has given much more favorable reviews to products that are inferior to ZL’s products by every pertinent measure, but are made by companies with which Gartner has close economic ties. The district court granted Gartner’s motion to dismiss ZL’s first amended complaint for defamation and trade libel without leave to amend, holding that Gartner’s Reports consist mainly of opinions which are not actionable as a matter of law. But it is well settled that opinions are actionable so long as they imply the existence of undisclosed objective facts. That is precisely the case here: Gartner’s Reports are understood as providing objective factual descriptions of product performance based upon undisclosed factual data. A product reviewer like Gartner

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cannot escape liability for publishing false and damaging statements merely by concealing the basis for its conclusions or by using fine-print disclaimers. ZL respectfully requests that this Court reverse the judgment of the district court, and reaffirm what the Supreme Court articulated some time ago: that there is no constitutional loophole for statements that might be labeled “opinion.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-22 (1990). II. JURISDICTIONAL STATEMENT The district court had subject matter jurisdiction pursuant to 28 U.S.C. § 1332, in that this is a civil action between citizens of different states in which the amount in controversy exceeds $75,000. This court has appellate jurisdiction over the district court’s final judgment granting Gartner’s motion to dismiss. See 28 U.S.C. § 1291. The district court’s final judgment was entered May 3, 2010. Appellant’s Excerpts of Record (“ER”) 162. ZL’s timely notice of appeal followed on May 6, 2010. ER 164-65. III. ISSUE PRESENTED FOR REVIEW 1. Whether a reasonable factfinder could conclude that any of the Magic

Quadrant Reports implies a factual assertion that ZL’s products are inferior to its competitors’ products in terms of objective performance. 2. Whether Gartner can, at the pleadings stage, escape liability for its

defamatory statements of fact through fine-print, boilerplate disclaimers stating

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that the Reports are nothing more than unreliable conjecture, which contradicts Gartner’s more prominent statements that the Reports are reliable, fact-based and grounded in rigorous analysis. IV. STATEMENT OF FACTS Gartner is the largest and most influential provider of research and analysis of information technology products. ER 117. The company bills itself as “the world’s leading information technology research and advisory company,” supplying “research and analysis” to its customers on subjects including “technology acquisition and deployment.” Id. The large institutions that make up the market for enterprise-level software products rely heavily on Gartner when making their purchasing decisions. In Gartner’s words, “to many, we are the IT research company. Thousands of companies and government agencies worldwide will not make major IT decisions without asking, ‘What does Gartner say?’” ER 118 (emphasis in the original). Buyers of enterprise software applications, like the email archiving software at issue in this case, 1 look to Gartner because Gartner digests its product analysis
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Email archiving software allows large enterprises to store, index, search and extract email data from their computer networks. ER 115. With the rapid growth of email usage by companies, governments and other organizations, such software has become a crucial tool for storing, organizing and accessing email data. ER 116. These capabilities are particularly important for enterprises subject to governmental regulatory regimes and litigation discovery obligations that require preservation and production of email data. Id. 3

into a form that summarizes the most salient criteria that should enter into the reader’s buying decision. ER 117-22. The end result of that process is Gartner’s “Magic Quadrant Report,” an annual review which sets out the company’s conclusions about the quality of software products in a visual matrix (the “Magic Quadrant”). ER 118-20. For example, Gartner’s 2007 Magic Quadrant for email archiving software appears as follows:

ER 43. The readers of the Reports use the ratings to tell them which email archiving and other enterprise-level software products to purchase. ER 117-18. Gartner tells readers that its research shows them “how to buy, what to buy, and how to get the

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best return on your technology investment.” Id. The Reports, and most prominently the Magic Quadrants themselves, are understood by Gartner’s readers as providing accurate and factual analysis of which email archiving software products perform the best according to objective performance measures. ER 41, 42, 45, 121, 129, 131. That understanding is encouraged by the language in the Reports. For example, in the introductory summary to the 2007 Magic Quadrant Report, titled “What You Need To Know,” Gartner describes the criteria it uses to create the Magic Quadrant. ER 42. It states that the Report ranks “enterprise-class products” by focusing on the products’ “scalability,” that is, “their ability to address the need of a market looking to support hundreds and thousands of users” and to tackle “the complexity of deploying and managing growing archives,” as well as the products’ “functionality,” that is, the features offered by a product, with particular focus on those features needed by large, growing enterprises. Id. The introduction also describes other objective criteria used in evaluating email archiving products, including the stability of the code underlying the product, the accuracy and completeness of the search, and the speed of the product. Id. (explaining the importance of “[c]ode quality,” “stable code,” “code problems,” “time to create . . . indexes,” “time to search them,” “time . . . to accomplish the archiving” and “full capture of messages” in differentiating products). In sum, Gartner tells its readers

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that the Reports provide exactly what they want to know: which email archiving product is best. The Magic Quadrant is oriented along two axes: “Ability to Execute” and “Completeness of Vision.” ER 43. As Gartner explains, the “Ability to Execute” axis primarily reflects the two performance measures that are most important to the email archiving software consumer: (1) product performance (i.e., accuracy, speed, search completeness, scalability, cost and features), and (2) company responsiveness (i.e., whether the company is stable enough and sufficiently committed to customer service to ensure good product support today and in the future). ER 45, 120-21. The Report states that “Ability to Execute” emphasizes “[p]roduct capabilities,” including “basic and advanced functionality,” “scalability and storage management capabilities, mailbox management, compliance supervision, legal discovery and integration of other related technologies.” ER 45. The “Completeness of Vision” axis focuses on the company’s general business model, evaluating some forward-looking criteria such as “market strategy” and “geographic strategy.” ER 46, 120. It also consists of some retrospective data, in particular an evaluation of which products have been quickest to adopt features catering to new market demands. ER 43. Gartner actively encourages its readers to understand the Reports as setting forth objective, factual evaluations of product performance. In SEC disclosures

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and elsewhere, Gartner proclaims that its research is “fact-based,” and “objective,” and that its research methodology ensures “ultimate objectivity.” ER 121-22. With respect to the Reports in particular, Gartner tells its customers that the analyses are based on a “rigorous mathematical model,” and invites vendors to correct any “factual errors” contained in the Reports. ER 121. At the same time that it touts the rigorousness of its analysis and the dependability of its conclusions, Gartner conceals the purportedly vast array of factual data underlying its ratings and the structure of its analytical method. ER 122-23. And, in direct contradiction to its claims that the Report is fact-based and that companies can rely upon it, Gartner includes in the Report a boilerplate, fineprint disclaimer in a tiny, condensed font stating that although “[t]he information contained herein has been obtained from sources believed to be reliable,” Gartner nonetheless “disclaims all warranties as to the accuracy, completeness or adequacy of such information.” ER 41. Gartner’s fine-print disclaimer further states that “[t]he opinions expressed herein are subject to change without notice.” Id. Gartner’s Report for email archiving has consistently ranked Symantec Corporation’s email archiving software as far superior to its competition, and in particular to the products made by ZL. ER 43, 58, 75. For example, in 2007, the Report placed Symantec first and ZL ninth out of fifteen ranked vendors in terms of “Ability to Execute,” which measures product performance. ER 43. Symantec,

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which has limited and outdated software features, also ranked first in terms of “Completeness of Vision,” which reflects product functionality. Id. ZL’s software, which offers a superior array of features, ranked thirteenth out of fifteen in terms of “Completeness of Vision.” Id. Even more important than Symantec’s and ZL’s respective numerical rankings is the magnitude of Symantec’s purported superiority according to Gartner. In terms of “Ability to Execute,” Symantec received a vastly superior score to ZL in each of the Report years at issue in this case. ER 43, 58, 75. Indeed, in the 2007 and 2008 Reports, Symantec stood alone as a “Leader” in email archiving software, with no other software coming remotely close to matching its purportedly extraordinary performance and array of features. ER 43, 58. The unmistakable message sent to readers is that Symantec’s software dominates other vendors’ software in all important performance attributes, making Symantec the clear choice for any email archiving software consumer. In plain speech, readers of Gartner’s email archiving Reports understand that Symantec’s email archiving product “works” far better than ZL’s product and other products. This is a demonstrably false statement of fact for several reasons: • ZL’s product is superior in terms of the objective performance attributes that are most important to the enterprise software consumer. These factors, which Gartner states are reflected in the Reports, are:

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(1) search speed; (2) scalability; (3) search accuracy; (4) completeness of search; and (5) cost. ER 116, 130-31. For example, if ZL’s Unified Archive (“UA”) product is compared to Symantec’s Enterprise Vault program, ZL’s product is superior in terms of speed (UA is 1,000 times faster), scalability (UA scales to one to two orders of magnitude higher), accuracy (UA searches produce more of what the user is looking for and fewer unwanted results), completeness (UA loses fewer emails) and cost (UA consumes half the server, storage and overhead cost). ER 116-17. • ZL’s products provide the broadest array of features and functionality in the market, and more features and functionality than Symantec’s product. ER 116, 130-131. Symantec’s product is based on outdated search technology while ZL’s product employs up-to-date code. ER 130-31. ZL’s product features are superior by objective measures to the features offered by Symantec. ER 131. • ZL’s products are superior in satisfying the needs of large-scale enterprises. ER 116. ZL’s software has succeeded in large-scale environments in which its competitors’ products have failed. Id. • ZL’s customer service is superior to its competitors. ER 117. ZL has a superior product and organizational architecture which results in

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shorter times to resolve problems than its competitors, measurably higher customer satisfaction and by far the industry’s lowest rate of customer loss. • ZL operates in the same customer and geographic markets as Symantec. ER 129. • ZL’s product appeals to a broader customer base than Symantec’s in that ZL’s product is compatible with far more operating systems, email platforms and database environments than Symantec’s. ER 129. Symantec’s product only runs a single email platform and a fraction of the operating system and database environments that are compatible with ZL’s product. Id. V. STATEMENT OF THE CASE On May 29, 2009, ZL filed a complaint against Gartner and Gartner’s lead analyst for email archiving products, Carolyn DiCenzo. ER 1-37. The complaint alleged causes of action under California law for defamation, trade libel, false or misleading advertising, unfair competition and negligent interference with prospective business advantage, as well as federal law claims under the Lanham Act. ER 92. Gartner moved to dismiss the complaint, arguing with regard to the defamation claims that its statements were protected opinion under the First Amendment and the California Constitution. ER 100; see Rodriguez v.

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Panayiotou, 314 F.3d 979, 985 (9th Cir. 2002) (explaining that the First Amendment provides a defense to state law defamation claims). The district court granted the motion, but also granted leave to amend with regard to ZL’s defamation claims. ER 92-112. In its dismissal order, the district court concluded that ZL’s defamation claims were barred because the statements at issue in Gartner’s Reports are pure statements of opinion. ER 99-106. In particular, the district court viewed “the general tenor of the MQ Report [as] negat[ing] the impression that Gartner is asserting an objective fact[.]” ER 101. In so holding, the district court relied upon a fine-print disclaimer in the Report labeling its analysts’ conclusions as mere “opinions.” Id. The district court further relied upon its determination that the Reports are “subjective on their face.” ER 103. And, the court concluded that although the Report might indirectly imply that ZL’s products perform poorly, its statements were nonetheless not actionable because Gartner had not stated that explicitly and directly. ER 104 (“There is no allegation that Gartner actually said that ZL is not a good choice; instead, ZL claims that its placement in the MQ Report would lead a customer to believe that ZL is not a good choice.”); Id. (“ZL does not allege that Gartner ever stated that ZL’s offerings are significantly inferior to Symantec’s products, only that an inference to that effect might be drawn by a consumer.”). The court did, however, grant leave to amend. ER 112.

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After ZL filed its First Amended Complaint, Gartner again moved to dismiss. ER 114, 138. The district court granted the motion, and this time denied leave to amend. ER 138-61. The court once again rejected the argument that Gartner’s opinions were actionable because they relied upon and implied statements of fact, this time stating that “[m]ost opinions are based at least in part on facts” and “[t]hat Gartner considered facts in forming opinions does not mean that the opinions are objectively verifiable.” ER 153. The court also premised its dismissal on its conclusion that even though the Reports encompass some factual information, the fact that they mix fact and opinion renders them non-actionable. ER 155. And, while acknowledging that Gartner’s statements “undeniably rest upon a large body of specific yet undisclosed facts,” the court concluded that they are non-actionable because Gartner’s ultimate conclusions are opinions. ER 158. VI. STANDARD OF REVIEW This court reviews the district court’s grant of a motion to dismiss de novo, asking whether the complaint states a claim to relief that is plausible on its face. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). In conducting this inquiry, this court construes the complaint in the light most favorable to the plaintiff, taking all allegations as true and drawing all reasonable inferences in the plaintiff’s favor. Doe v. Untied States, 419 F.3d 1058, 1062 (9th Cir. 2005).

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This court reviews the district court’s denial of leave to amend for an abuse of discretion. Pub. Utility Dist. No. 1 v. IDACORP Inc., 379 F.3d 641, 646 (9th Cir. 2004). The district court abuses its discretion unless “it is clear on de novo review that the complaint could not be saved by amendment.” Id. VII. SUMMARY OF ARGUMENT The threshold question in a defamation suit is whether “a reasonable factfinder could conclude that the statement [at issue] implies an assertion of objective fact.” Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990) (citation, alterations and internal quotation marks omitted). Here, the district court concluded that the Reports are not actionable because their “general tenor” and disclaimers suggest that they consist mainly of opinion. This was error. There is no “wholesale defamation exemption for anything that might be labeled ‘opinion.’” Milkovich, 497 U.S. at 18. Instead, it is well settled that a statement of opinion is actionable in a defamation suit if it implies the existence of a false factual basis. Unelko, 912 F.2d at 1053. In this case, Gartner encouraged its subscribers to rely upon its Reports to make important software purchasing decisions. A reasonable reader of the Reports, having paid thousands of dollars for Gartner’s analysis, would understand that the Reports present professional and fact-based reviews of those products, not conjectural statements about issues in which the reader had no interest. Therefore, by stating that Symantec’s products

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are vastly superior to ZL’s, Gartner either made actionable statements of fact or provided actionable opinions implicitly suggesting the existence of a false factual basis. On either basis, the First Amended Complaint readily satisfies this Circuit’s test for legal sufficiency. VIII. ARGUMENT A. DISMISSAL IS WARRANTED ONLY IF NO REASONABLE JUROR COULD CONCLUDE THAT THE REPORTS IMPLY A FACTUAL ASSERTION

In granting Gartner’s motion to dismiss without leave to amend, the district court incorrectly relied upon its own subjective reading of the Reports to determine its understanding that the Reports set forth non-actionable, pure opinions. Particularly at the pleading stage, the district court’s inquiry should have been limited solely to determining whether any reasonable reader of the Reports could conclude that they set forth a statement of fact, or set forth opinions that imply reliance upon facts. When viewed in this light, the First Amended Complaint should easily have withstood Gartner’s motion. The generally forgiving rules of notice pleading apply equally to a claim of defamation as to any other claim. See Rodriguez, 314 F.3d at 983. Thus, the court may dismiss only if the plaintiff can allege no plausible claim for relief. See id. The court is required to construe the complaint in the light most favorable to the

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plaintiff, taking all its allegations as true and drawing all reasonable inferences from the complaint in its favor. Doe, 419 F.3d at 1062. A court has only limited ability to hold at the pleading stage that a statement is not defamatory as a matter of law. “It is error for a court to rule that a publication cannot be defamatory on its face when by any reasonable interpretation the language is susceptible of a defamatory meaning.” Selleck v. Globe Int’l, Inc., 166 Cal. App. 3d 1123, 1132 (1985). The issue is not “whether the court regards the language as libelous, but whether it is reasonably susceptible of such a construction.” Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986). Thus, “if a statement is susceptible of different constructions, one of which is defamatory, resolution of the ambiguity is a question of fact for the jury.” Flowers v. Carville, 310 F.3d 1118, 1128 (9th Cir. 2002) (quoting Posadas v. City of Reno, 109 Nev. 448 (1993)). The court’s ability to determine that a given statement consists solely of non-actionable, “pure” opinion is similarly constrained. The court may only adjudicate the case as a matter of law if “no reasonable person could construe [the statements] as provably false.” Manufactured Home Communities, Inc. v. County of San Diego (“MHC”), 544 F.3d 959, 964 (9th Cir. 2008); see also Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995) (explaining that the applicable test is “whether a reasonable factfinder could conclude that the statements imply a false

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assertion of objective fact”). Thus, even if a district court is “correct in its assessment that each of the[] statements [at issue] is properly interpreted as an assertion of opinion,” that is still insufficient to take the matter from the jury if “a reasonable factfinder could disagree with that assessment.” MHC, 544 F.3d at 964; see also Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 152 n.1 (2d Cir. 2000) (“We must ask whether the alleged interpretation is reasonable, not whether it is ‘most likely.’”). As this Court has explained, even when there are “persuasive reasons” for concluding that particular statements set forth pure opinion, the court cannot adjudicate the issue as a matter of law unless that is “the only reasonable interpretation of the statements.” MHC, 544 F.3d at 964 & n.3 (emphasis in original) (citing Milkovich, 497 U.S. at 19); Flowers, 310 F.3d at 1128 (explaining that the proper determination for the court is whether the nondefamatory meaning is the “only reasonable construction” (emphasis in original)). The same approach is followed by California courts. Rodriguez, 314 F.3d at 986-87 (citing cases). ZL’s allegations readily satisfy this test. The Reports tell readers that Symantec’s products are vastly superior to ZL’s products, when in fact the opposite is true. ER 116-117, 129, 130-31. The Reports indicate that the ratings reflect the rated products’ scalability, speed, accuracy, functionality, code quality and cost, and a reasonable reader of the Reports would understand them to reflect

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those attributes. ER 42, 57, 74, 120-21, 129, 131; see Unelko, 912 F.2d at 1055 (interpreting statement that product “didn’t work” from perspective of reasonable audience member who would be “familiar with the product”); Knievel v. ESPN, 393 F.3d 1068, 1077 (9th Cir. 2005) (interpreting statement on website from the perspective of the intended “youthful audience”). Gartner’s business model depends upon its audience believing its assurances that they can rely on the factbased Reports in making critical enterprise software purchasing decisions. ER 117-18. Given such assurances, the most obvious interpretation of the Reports is as providing a factual assessment of product performance and functionality. At a minimum, it would not be unreasonable for a reader of the Reports to interpret them as reflecting the products’ performance. To underscore the factual nature of the Reports, one need only to review the Magic Quadrants themselves. In them, Gartner clearly and consistently represents that Symantec obliterates its competitors. This carries the inescapable implication that the magnitude of Symantec’s superiority is premised in the data which the Reports purportedly reflect. Readers of the Reports would and do conclude from this that Symantec makes the best email archiving product on the market, and that no other product comes remotely close to Symantec’s. Those same readers would understand that, given the yawning gap between Symantec’s products and other software products, no rational enterprise would buy any product other than

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Symantec’s. And, those same readers would reach this conclusion based upon their understanding regarding what makes one product better than others (i.e., speed, accuracy, scalability, cost, etc.). At the very least, readers would not be unreasonable to draw this conclusion. For these reasons, the judgment of the district court should be reversed. B. OPINIONS ARE ACTIONABLE IF THEY IMPLY AN UNDISCLOSED FACTUAL BASIS

Even if it were true that the Reports could be interpreted only as containing “pure” opinions (which is not the case), the Reports are still actionable because Gartner’s statements also imply the existence of undisclosed facts. The Supreme Court has held that there is no “wholesale defamation exemption for anything that might be labeled ‘opinion.’” Milkovich, 497 U.S. at 18. To erect what the Court has called an “artificial dichotomy between ‘opinion’ and fact” would impair the “important social values which underlie the law of defamation.” Id. at 19, 22. These include the “pervasive and strong interest in preventing and redressing attacks upon reputation.” Id. at 22. Courts must therefore always be mindful “that expressions of ‘opinion’ may often imply an assertion of objective fact” which is actionable. Id. at 18. Thus the statement “In my opinion John Jones is a liar” is an actionable opinion because in uttering such a statement the speaker “implies a knowledge of facts which lead to the conclusion that Jones told an untruth.” Id.; see also Standing Committee on Discipline v. Yagman, 55 F.3d 1430, 1439 (9th 18

Cir. 1995) (holding that a statement of subjective opinion is actionable if it is “based on implied, undisclosed facts”). “[T]he threshold question in [a] defamation suit[] is not whether a statement might be labeled ‘opinion,’ but rather whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact.” Unelko, 912 F.2d at 1053 (citation and internal quotation marks omitted). In order to qualify as a nonactionable “pure” opinion, a statement must not only be framed on its face as an opinion, but it also must “not imply facts capable of being proved true or false.” Partington, 56 F.3d at 1153 n.10 (citation omitted). Furthermore, “[e]ven in contexts in which the general tenor of the work suggests that the author is expressing personal opinions, it is possible that a particular statement of opinion may imply a false assertion of objective fact and therefore fall outside the scope of the First Amendment’s protection.” Id. at 1155. In interpreting what implied assertions of fact could reasonably be drawn from a stated opinion, a court must once again look to the perspective of the reasonable reader, with particular focus on the publication’s intended audience. Unelko, 912 F.2d at 1055. In Unelko, this Court interpreted commentator Andy Rooney’s general statement that a windshield product “didn’t work” to imply that the product, Rain-X, “was not invisible, that rain did not disperse on contact, that Rain-X did not repel bugs and other projectiles, that cleaning was not a snap, and

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that Rain-X did not increase Rooney’s all-around visibility, safety, and driving comfort.” Id. This Court further explained that the implicit meaning of a general statement of opinion can be gleaned from factual development during discovery. Id. at 1056 (stating that the phrase “it didn’t work” should be interpreted in light of Rooney’s deposition testimony). Even though Rooney’s implied statements were themselves subjective, they rested on “a core of objective evidence” and were therefore actionable. Id. at 1055. As Unelko makes clear, the implied facts doctrine exposes the speaker to liability even when the speaker’s opinion is stated in vague or general terms. See also Condit v. National Enquirer, Inc., 248 F.Supp.2d 945, 965 (E.D. Cal. 2002) (holding that the word “attacks” was actionable even though it was susceptible to an innocent interpretation). This is particularly true with regard to critiques of products or services for which no factual basis is provided. “Statements of opinion to the effect that a competitor’s goods are poor . . . have been held to imply a state of facts.” 2 Callman on Unfair Competition Trademarks & Monopolies § 11:5 (4th ed. 2010). Thus, Rooney’s statement that a product for reducing collection of rain on a car’s windshield “doesn’t work” was actionable because it implied nondisclosed facts about the basis for that opinion, i.e., that Rooney had used the product and found that it did not improve visibility. Unelko, 912 F.2d at 1055. A statement that a doctor “is an incompetent surgeon and needs more training” is

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actionable because it “implies a knowledge of facts which lead to this conclusion and further is susceptible of being proved true or false.” Gill v. Hughes, 227 Cal. App. 3d 1299, 1309 (1991). Oprah Winfrey’s statement that she had “lost confidence” in the headmistress of Ms. Winfrey’s South African school was actionable because it implied that as the plaintiff’s superior, Ms. Winfrey knew undisclosed negative information about her job performance. Mzamane v. Winfrey, 693 F.Supp.2d 442, 481-82 (E.D. Pa. 2010). And, a statement that a lawyer was an “ambulance chaser” was actionable because it implied knowledge of facts that the lawyer solicited business unethically. Flamm, 201 F.3d at 147. Likewise, in this case Gartner’s placement of a particular product or company on its Magic Quadrant is actionable even though it is subject to interpretation by the reader.2 MHC, 544 F.3d at 964 & n.3 (holding that the case may be taken from jury only when the innocent interpretation is “the only There is no First Amendment liability exemption for product reviews. For example, in Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110, 1133 (9th Cir. 2003), this Court found a triable issue in a product disparagement suit against the publisher of the venerable magazine Consumer Reports, which had printed a harsh safety assessment of a popular car. The Court concluded that: [A]lthough the dissent provides a plausible view of the evidencethat CU acted in good faith as a skeptical consumer watchdog should-it is not our role, at this stage, to take sides in this way. As we discuss below, there is also another plausible view of the summary judgment record-that CU ‘rigged’ a test to achieve a predetermined result in order to serve its own pecuniary interests. 330 F.3d at 1133. ZL has made similar allegations regarding Gartner’s financial bias and manipulation of its analysis, ER 126-28, and ZL’s allegations similarly must be resolved by a fact finder. 21
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reasonable interpretation of the statements” (emphasis in original)). At this stage, the complaint should withstand a motion to dismiss if a reasonable reader could view the Reports as falsely implying that Symantec’s products outperform ZL’s by a substantial margin in terms of objective performance measures. Unelko, 912 F.2d at 1053. After the parties are allowed to take discovery, ZL will furnish evidence that readers of the Reports do in fact interpret them in this fashion. See al-Kidd, 580 F.3d at 977 (holding that a complaint withstands a motion to dismiss if the allegations and judicially noticeable material provide “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence to prove [the] claim” (internal quotation marks omitted)). It makes no difference that the reader of the Gartner Reports could glean a non-defamatory or non-factual meaning from the Magic Quadrant. MHC, 544 F.3d at 964 & n.3. Gartner chose to summarize its analysis of Symantec’s and ZL’s products in a diagram. The most obvious understanding of the Magic Quadrant diagram is that it provides a simplified summary of the specific attributes that are of interest to the reader, including product speed, accuracy, stability, features, scalability and cost. Presentation of information in this summary fashion increases its defamatory character, by making any disclaimers less likely to be read or taken seriously. See Kaelin v. Globe Communications Corp., 162 F.3d 1036, 1041 (9th Cir. 1998).

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In Kaelin, the Ninth Circuit held that a newspaper headline which implies a false statement of fact is actionable even if review of the entire article may dispel the headline’s potentially defamatory meaning. Id. “[N]ot every word of an allegedly defamatory publication has to be false and defamatory to sustain a libel action.” Id. at 1040. Portions of a publication—particularly those featured prominently like headlines—can be actionable on their own because many readers are unlikely to read any further. Id. In such circumstances, in which the general tenor of the headline conflicts with the general tenor of the article, the court cannot decide the question as a matter of law because it is a “question of fact for the jury” whether “the entirety of the publication . . . clears up any false and defamatory meaning that could be found on the cover.” Id. at 1041; accord Condit, 248 F.Supp.2d at 966. Accordingly, Gartner cannot hide behind disclaimers and qualifications to avoid the clear meaning of the Magic Quadrant to its typical audience. Even if statements buried deep within the Reports or in fine print try to paint the Reports as mere opinion, that cannot resolve this case as a matter of law. Kaelin, 162 F.3d at 1040-41. Because the Magic Quadrant places Symantec’s software so far ahead of ZL’s and other vendors’ software, it is difficult to escape the conclusion that Symantec outperforms other software in every conceivable performance category. At the very least, a reasonable reader could understand the magnitude of difference

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as implying the existence of such false facts, notwithstanding Gartner’s technical disclaimers and qualifications. It also makes no difference that the Reports combine factual information with opinions. “[A]n essential component of an opinion is that it be wholly subjective.” MHC, 544 F.3d at 965 (citation and internal quotation marks omitted). See also Johnson v. Clark, 484 F.Supp.2d 1242, 1249 (M.D. Fla. 2007) (holding that “mixed statements of opinion and fact” are actionable); Flentye v. Kathrein, 485 F.Supp.2d 903, 920 (N.D. Ill. 2007) (“Mixed expressions of fact and opinion may be actionable if the facts are subject to verification.”); Restatement (Second) of Torts § 566 cmt. c (explaining that “an expression of a mixed opinion can itself be a defamatory communication”). If “a reasonable listener could conclude” that a statement of opinion was founded “in part on an objective factual basis,” then the question cannot be resolved as a matter of law. MHC, 544 F.3d at 965 (emphasis added). Particularly at the pleading stage, the task of the court “is not parsing whether a published statement is fact or opinion;” rather the court must determine “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” Overstock.com, Inc. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688, 701 (2007). Here, the most natural interpretation of the Reports is that they provide both express and implied

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assertions of fact. It certainly would not be unreasonable for a fact finder to conclude that is the case. C. THE TOTALITY OF CIRCUMSTANCES PRECLUDE DISMISSAL OF THE COMPLAINT

To assist in analyzing whether a reasonable factfinder could view the statements as making express or implied factual assertions, courts in this Circuit examine three “totality of circumstances” factors: (1) the “broad context” of the statement, including the “general tenor of the entire work, the subject of the statements, the setting, and the format of the work;” (2) the “specific context,” including “the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation;” and (3) whether the statement is “susceptible of being proved true or false.” Knievel, 393 F.3d at 1075 (citation omitted). Each of these factors strongly supports the conclusion that the statements in the Reports are actionable. 1. Broad Context

The first factor focuses on the setting in which the statement arose, here the overall structure of the Reports themselves and the identity of the speaker. Id. “If a statement is published where a reader would expect assertions of fact because of the context, it is likely to be understood to be, and therefore be treated by a court as, an assertion of fact.” 1 Robert D. Sack, Sack on Defamation § 4:3.1 (4th ed. 2010). Thus, for example, even though the statement that a lawyer is an 25

“ambulance chaser” is somewhat hyperbolic in tone, it is nonetheless actionable when appearing in a guide to lawyers known for literal speech. Flamm, 201 F.3d at 152. This is true because “a reasonable reader would not expect . . . hyperbole in a straightforward directory of attorneys and other professionals.” Id. Indeed, “it would not be unreasonable for a reader to believe that the [defendant] would not have printed such a statement without some factual basis and to conclude that the statement did indeed state facts about” the plaintiff. Id. This principle applies with added force to Gartner’s Reports, which the company holds out as based upon rigorous factual analysis. Gartner encourages its customers to depend on the information in making crucial enterprise software purchasing decisions, and its customers pay for and rely upon the Reports for that very purpose. ER 117-18. Gartner promises to tell its audience “how to buy, what to buy, and how to get the best return on your technology investment.” ER 118. It does so while simultaneously trumpeting its Reports as “objective,” “fact-based” and grounded in a “rigorous mathematical model.” ER 121-22. Gartner has repeatedly told its readers that Symantec is the only reasonable choice for email archiving software consumers. Having read this, “it would not be unreasonable for a reader to believe that [Gartner] would not have printed such a statement without some factual basis[.]” Flamm, 201 F.3d at 152.

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Gartner makes these assertions knowing that a large organization’s purchase of enterprise software is far more complex than a consumer’s selection of a particular brand of toothpaste or even the family car. A company’s decision to partner with a provider of enterprise-level email archiving software will typically entail a multi-year commitment and a substantial financial investment. If the purchased software package turns out to be slow, inaccurate, costly, prone to crashes or incapable of growing with the company, then the enterprise will lose money and the people who chose the software package will lose their jobs. That is why companies pay thousands of dollars for Gartner’s analysis and expect that it is sound and reliable. That is also why a reasonable recipient of the Reports is unlikely to discount them as mere opinion. It is well within the margin of reason to conclude that companies that purchase Gartner’s Reports depend on the company not to provide a stylized commentary about the products and companies involved, but instead to present the cold hard facts about the products under discussion. Cf. Partington, 56 F.3d at 1153 (evaluating statements based on understanding that “readers presumably purchased the book not to read a dry description of the facts but to learn of Bugliosi’s personal perspective about the trials . . .”). A company that “holds itself out to its subscribers as having specialized knowledge” and which builds its “business . . . around developing reader confidence to rely on its opinions as

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reflecting the truth about [reviewed] companies” can reasonably be viewed as making actionable factual assessments about the subjects under review. Overstock.com, 151 Cal. App. 4th at 706 (holding that statements in a financial consultant’s report were actionable because the author held itself out as providing objective analysis of companies’ financial structure and performance). Nor can Gartner transform its Reports into pure statements of opinion by the simple expedient of a fine-print disclaimer. The mere use of the preface “in my opinion” will not render a statement non-actionable. Milkovich, 497 U.S. at 18-19; Partington, 56 F.3d at 1156; Yagman, 55 F.3d at 1439. “[S]tatements in a publication[] do not attain constitutional protection simply because they are sprinkled with words to the effect that something does or does not ‘appear’ to be thus and so; or because they are framed as being ‘in our opinion’ or as a matter of ‘concern.”’ Overstock.com, 151 Cal. App. 4th at 703-04. “[W]rapping an article around a disclaimer that the contents represented a ‘judgment’ does not conclusively resolve the dispositive question—whether a reasonable fact finder could conclude that the publication declares or implies a provably false assertion of fact.” Id. at 704. See also Swengler v. ITT Corp., 993 F.2d 1063, 1071 (4th Cir. 1993). Moreover, courts have “reject[ed] the notion that merely couching an assertion of a defamatory fact in cautionary language such as ‘apparently’ or ‘some

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sources say’ or even putting in the form of a question, necessarily defuses the impression that the speaker is communicating an actual fact.” Overstock. com, 151 Cal. App. 4th at 704 (citation omitted). And, courts have further rejected the argument that enshrouding a factual implication in “technical, complex, subjective and debatable” assessments of the facts renders a statement nonactionable. Id. at 706. In short, a statement must be interpreted according to the meaning ascribed by its audience, not according to legal technicalities and disclaimers. Under this test, the general context of the Reports demonstrates that they are actionable. 2. Specific Context

The second factor looks at the intrinsic qualities of the statement itself. Here again, Gartner’s Reports are presented as fact-based mathematical reviews of product performance. Any reasonable reader examining the Magic Quadrant diagram would understand it not as a Rorschach-like random assortment of dots on a page, but rather as a serious study meant to convey factual information in a condensed form. See ER 121 (recounting statement of a Gartner Vice President that the company uses a “rigorous mathematical model – we don’t just place dots”). The Magic Quadrant is decidedly lacking in hyperbole or any other intrinsic indicator that the Report is meant to be taken non-literally or as artistic prose. This stands in stark contrast to the typical case in which courts have found that a

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statement constituted opinion as a matter of law. Cf. Partington, 56 F.3d at 115354 (holding that a trial lawyer’s account of a trial gave rise to an expectation of non-literal speech because “trial lawyers[] are not known for their modesty”); Gardner v. Martino, 563 F.3d 981, 988 (9th Cir. 2009) (explaining that the statements made on a radio talk show had to be evaluated in light of the fact that show “contains many of the elements that would reduce the audience’s expectation of learning an objective fact: drama, hyperbolic language, an opinionated and arrogant host, and heated controversy”); Knievel, 393 F.3d at 1075 (jocular and juvenile tone of statement was “paramount” if not “dispositive” of court’s interpretation). Absent “the sort of loose, figurative, or hyperbolic language which would negate the impression that the writer was serious[],” the statement should reasonably be construed as setting forth an assertion of fact, or at the very least implying the existence of a factual basis. Milkovich, 497 U.S. at 21. 3. Susceptibility to Being Proven True or False

As already explained, the Report’s express and implied statements that ZL’s products lag far behind Symantec’s and other competitors’ products is readily subject to factual confirmation. ZL’s products are superior to much higher-rated vendors’ products in terms of speed, accuracy, completeness of search, accuracy of search and cost—the attributes that are the focus of the readers of the Reports. ER 116, 130-31. ZL’s products also provide more features and functionality than its

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competitors, and employ cutting edge search technology. ER 130-131. And, to the extent that the Reports suggest that ZL serves only a limited market, that too is a verifiably false statement. In fact, ZL operates in the same customer and geographic markets as highly-rated Symantec and its software is compatible with a broader customer base. 3 ER 129. The MQ’s readers pay for Gartner’s fact-based analysis in order to determine which email archiving software will perform best for their business. Those same readers are plainly not interested in color commentary regarding the software industry; they want to know which product is best. See Rodriguez, 314 F.3d at 986 (holding that the court must “place itself in the position of the . . . reader, and determine the sense of meaning of the statement according to its natural and popular construction” (citation omitted)). Particularly when viewed That Gartner’s negative appraisal of ZL’s product is provably false is underscored by the statement of its analyst, Carolyn DiCenzo, that ZL’s product and Gartner’s product are “the same.” ER 131. This statement was understood to mean that the products performed identically in terms of their features and objective performance. Id. The district court erred in concluding that DiCenzo’s statement was not independently actionable because it contradicted Gartner’s statements in the Reports that Symantec’s products perform far better than ZL’s. ER 106, 15051 n.2. The statements are actionable precisely because the district court could conclude that they are contradictory. See MHC, 544 F.3d at 964 (“If the district court can assess the truth or falsity of the claim, that seems a strong indication that it was a provably false assertion of fact, and therefore actionable.”). Also, DiCenzo’s statement that the products are “the same” can be proven true or false since ZL’s product performance is far superior to Symantec’s product performance. The DiCenzo statement therefore provides a separate and independent basis for reversal. 31
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from the perspective of its readers, the Reports must be read as making assertions susceptible to being proven true or false. D. THERE IS NO EXEMPTION FROM DEFAMATION LIABILITY FOR NONTRANSPARENT ANALYSIS

Below, Gartner argued that even if its statements are false, it is nonetheless immune from liability because it conceals the facts upon which its conclusions are based and the specific manner in which it evaluated the concealed facts to arrive at its false conclusions. In fact, the opposite is true. It is well-settled in this Circuit that lack of transparency increases the actionability of a statement of opinion. A speaker who publishes damaging opinions may protect himself from defamation liability by being transparent regarding the factual basis for the opinions. Gardner, 563 F.3d at 987 (“[W]hen a speaker outlines the factual basis for his conclusion, his statement is not defamatory and receives First Amendment protection.”). If the underlying facts are disclosed, the speaker’s conclusion becomes “an interpretation of the facts equally available to [the speaker] and to the listener” rather than “an assertion of objective facts.” Id. at 988. If the underlying facts are true, then the speaker cannot be held liable. “A simple expression of opinion based on disclosed . . . nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is.” Yagman, 55 F.3d at 1439 (citing Restatement (Second) of Torts § 566, cmt. c). This principle makes eminent sense, as it allows 32

speakers to issue the most stinging of critiques without having to fear liability for defamation. All the speaker has to do is provide the audience with the facts, and let the audience decide whether the critique is fair. Id. (“[A]n opinion which is unfounded reveals its lack of merit when the opinion-holder discloses the factual basis for the idea; readers are free to accept or reject the author’s opinion based on their own independent evaluation of the facts.” (internal quotation marks omitted)). However, a speaker like Gartner that conceals the basis for its analysis is not entitled to this same protection. The reason for this principle is also clear: were the rule otherwise, a clever defamer could always escape responsibility for highly damaging statements by couching the statements in suggestive innuendo and thereby allowing the listener to draw the obvious, defamatory conclusion. Cf. Restatement (Second) of Torts § 566 cmt. c (“[I]f the recipient draws the reasonable conclusion that the derogatory opinion . . . must have been based on undisclosed defamatory facts, the defendant is subject to liability.”). In fact, when the speaker conceals the underlying facts and analysis, he makes the statement more harmful by inviting the audience to draw the most damaging and false conclusions. Thus the statement “I think Jones is an alcoholic” is actionable because the speaker’s failure to elaborate has allowed the listener to assume the worst about Jones, such as that “Jones stops at a bar every night after work and has three

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martinis.” Yagman, 55 F.3d at 1439. The statement is actionable because the listener “will reasonably understand the author to be implying he knows facts supporting his view[.]” Id. It makes no difference whether the speaker’s definition of “alcoholic” is three martinis every night or six martinis every other night. Regardless of the thought process, if the listener could perceive an underlying factual basis that is untrue, then the opinion is defamatory. See id. However, when the speaker discloses his thought process in a manner that dispels the listener of the defamatory meaning, then the very same opinion becomes non-actionable. Yagman, 55 F.3d at 1439. It is therefore not actionable to state: “I have seen [Jones] . . . only twice, in his backyard around 5:30 seated in a deck chair . . . with a drink in his hand. I think he must be an alcoholic.” Id.; Flowers, 310 F.3d at 1128 (explaining that a statement is not actionable if the only reasonable construction of the statement is a non-defamatory one). A speaker cannot escape liability for making false statements by couching a damaging implicit statement of fact as an opinion. Nor is there any loophole for speakers that conceal the basis for their opinion even while suggesting an underlying defamatory basis. The law takes a pragmatic approach to such statements, and at bottom requires that they be interpreted as would a reasonable listener in light of the overall context. At the motion to dismiss stage, the question is whether any reasonable factfinder could understand the statement in question to

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make or imply an assertion of objective fact. MHC, 544 F.3d at 964. In spite of their technical disclaimers and hidden reasoning, the Gartner Reports do exactly that. The motion to dismiss should have been denied. IX. CONCLUSION For all the foregoing reasons, Appellant respectfully requests that the judgment of the district court be reversed, and that this action be remanded for further proceedings with regard to ZL’s defamation and trade libel claims.

DATED: August 16, 2010

KERR & WAGSTAFFE LLP
By: /s/ Michael Ng 5

MICHAEL K. NG Attorneys for Plaintiffs-Appellants ZL TECHNOLOGIES
57834_2.doc

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CERTIFICATION OF COMPLIANCE WITH WORD LIMIT Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure and Ninth Circuit Rule 32-1, I certify that this Appellant’s Opening Brief is proportionately spaced, has a typeface of 14-point, proportionally-spaced font, and contains fewer than 8,826 words. DATED: August 16, 2010 KERR & WAGSTAFFE LLP

By /s/ Michael Ng 5 MICHAEL K. NG Attorneys for Plaintiffs-Appellants ZL TECHNOLOGIES

STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, Appellant ZL Technologies, Inc. states that there are no related cases pending in this Court.

DATED: August 16, 2010

KERR & WAGSTAFFE LLP

By /s/ Michael Ng 5 MICHAEL K. NG Attorneys for Plaintiffs-Appellants ZL TECHNOLOGIES

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