SULLIVAN, SS.

SUPERIOR COURT
No. 220-2016-CV-00133
AUTOMATED TRANSACTIONS, LLC and DAVID BARCELOU

v.
AMERICAN BANKERS ASSOCIATION, CREDIT UNION NATIONA L ASSOClATION, l NC., Ros1:RT
H. STIER, JR., PIERCE ATWOOD LLP, CHARLES VON SIMSON, W. JOHN FUNK, GALLAGHER,
CALLAHAN & GARTRELL, P.C., RALPH E. JOCKE, WALKER & JOCKE Co., LP A,
MASCOMA SAVINGS BANK, and STEPHEN F. CHRISTY

ORDER ON MOTIONS TO DISMISS
Plaintiffs Automated Transaction s, LLC ("A TL") and David Barcelou sued the
defendants named above for both defamation and New Hampshire Consumer Protection
Act violations. The plaintiffs con tend that in an effort "to exclude others from makin g,
using, and selling patented inventions that they wan ted only for th em selves," the
defendants embarked on a campaign to publicly "denigrate the property rights of ...
patent owner[s] and holder[s) ." (Amended Complaint, 1[ 40.) Defendants American
Bankers Association, Credit Union National Association, Inc., Rob ert H. Stier, Jr., Pierce
Atwood LLP, W. John Funk, and Gallagher, Callahan & Gartrell, move to dismiss the
complaint, while Mascoma Savings Bank and Stephen F. Ch risty seek summary judgment.
A common ground for dismissal or for summary judgment is that the statements attributed
to them cannot b e construed as defamatory because th ey are protected expressions of

 opinion or do not otherwise qualify as statements of fact. They contend as well that because
the Consumer Protection Act claim is based on statements about the plaintiffs that are not
assertions of fact, it should be dismissed as well.
Background
The following facts are taken from the plaintiffs' first amended complaint. ATL is

J

limited liability company incorporated in Delaware and headquartered in New Hampshire.
(Amended Com pl. <JI 2). David Barcelou is a recognized inventor and ATL' s fotmding CEO
and manager. Id. at <JI<JI 3, 42. He has been a New Hampshire resident since 2011. Id. at <JI 3.
After achieving success with various inventions in the 1980's, Mr. Barcelou began
working in 1993 toward "automating tournaments." Id. at 1148. He hoped to develop a
system "where any' game of skill' could automatically accept an entry fee, administrate a
winner, and award the winner an immediate cash prize, anywhere in the world." Id. Mr.
Barcelou began his development process by researching the ATM industry for most of 1993.
Id. In 1994 he created a prototype of an" Automated Tournament Machine." Id. at <JI 50. He

hired a computer scientist and an industrial design firm to document his new invention. Id.
at <JI 51. Subsequently, he built more prototypes of the" Automated Tournament Machine,"
and developed many advances over existing ATMs. Id. at <JI 52. He filed patent applications
to protect the commercial viability of these advances, id. at <JI 53, and started exploring
relationships with CoreStates Bank and Hitachi, assembling a management team, and
seeking capital investments. Id.

2

 Mr. Barcelou's efforts to commercialize his ideas in the late 1990's and early 2000's
proved unsuccessful, but he received a consolation prize in 2005 when the United States
Patent Office granted him his first ATM-related patent. Id. at 1111 54- 55. A short time later,
he sued 7-Eleven alleging that the corporation's "VCOM" mad1ines infringed on his patent.

Id. Then, in 2008, he designated ATL as the exclusive licensor of his patent technology. Id. at
<JI

56. ATL began to offer patent licenses, suing when necessary, and defending patents in

the Patent Office. Id. The licensing venhire paid off - between 2011 and 2012 ATL
generated over $3 million in licensing revenues from approximately 200 licenses. Id. at 9f 57.
The Patent Office also granted Mr. Barcelou more ATM-related patents. Id.
Mr. Barcelou and A TL contend that in the wake of ATL' s success in 2011 and 2012,
the defendants engaged in a "defamat01y smear campaign" against them. Id. at 9191 62, 64.
First, in October 2012 an article on the website bizjournals.com analogized ATL's licensing
efforts to bank robbery. Id. at 1191 66, 67. Then, in April 2013, another article on
bizjournals.com referred to ATL as a "patent troll." Id. at 11 68. Other pejorative statements
by the various d efendants followed the articles. Id. at 111169- 85. The plaintiffs attribute a
severe decline in A TL' s revenue and loss of licensing opportunities to defamatory
statements by the defendants whose motions to dismiss and for summary judgment are
pending. They say the statements also "permanently damaged" Mr. Barcelou's reputation
and caused him emotional distress. Id. at 1191 93- 94.

,.,
.)

 The first group of motions is from defendants who seek to dismiss the complaint.
The plaintiffs raise a preemptive challenge to the motions, citing cases in which the
determination of whether a statement was protected opinion was decided on summary
judgment. They contend a motion to dismiss is an appropriate vehicle for such an analysis.
They identify no case that says this, and one recent decision addressed the issue when it
was raised in a dismissal motion. See Sangue~olce v. Wolfe, 164 N.H. 644, 645-46 (2013). In
fact, "the nature of a libel action lends itself to judicial scrutiny in the early stages of a
defamation lawsuit." Mitchell v. Random House, Inc., 703 F. Supp. 1250, 1258, n.10 (S.D. Miss.
1988).

Dismissal of defamation suits for failure of the complaint to state a cause of
action or to state a claim upon which relief may be granted occurs with relative
frequency. One substantial factor is that the communication complained of is
usually before the court at the outset; indeed in many jurisdictions it is required
that complaints themselves set forth the allegedly defamatory statement. Thus,
unlike most litigation, in a libel suit the central event-the communication about
which suit has been brought-is usually before the judge at the pleading stage.
He may assess it upon a motion to dismiss first hand and in context.
Id. (quoting R. Sack, Libel, Slander and Related Problems 533-34 (1980)). So, there is no bar to

addressing the issue through the various dismissal motions.
Whether there is merit to a motion to dismiss depends on "whether the allegations
in the petitioner's pleadings are reasonably susceptible of a construction that would permit
recovery." Morrissey v. Town of Lyme, 162 N.H. 777, 780 (2011) . The facts alleged in the
complaint are presumed to be true and reasonable inferences from those facts are drawn in
the light most favorable to the plaintiff. Id. "The plaintiff must, however, plead sufficient

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 facts to form a basis for the cause of action asserted." Mt. Springs Water Co. v. Mt. Lakes

Village District, 126 N .H . 199, 201 (1985). Mere conclusions of law need not be credited. Id.
(citation omitted).
In order to make a claim of defamation, the plaintiff must allege facts that show "the
defendant failed to exercise reasonable care in publishing a false and defamatory statement
of fact about the plaintiff to a third party, assuming no valid privilege applies to th e
communication." Pierson v. Hubbard, 147 N.H. 760, 763 (2002). The "language complained of
... must tend to lower the plaintiff in the esteem of any substantial and respectable group,
even though it may be quite a small minority," and "the defamatory meaning must be one
that could be ascribed to the words by 'hearers of common and reasonable unders tanding.'"

Thomson v. Cash, 119 N.H. 371, 373 (1979) (quotation omitted).
The defendants contend the statements identified in the complaint as defamatory,
are in reality opinions or otherwise not actionable factual assertions.
A statement of opinion is not actionable, unless it may reasonably be understood
to imply the existence of defamatory fact as the basis for the opinion. Whether a
given statement can be read as being or implying an actionable statement of fact
is itself a question of law to be determined by the trial court in the first instance,
considering the context of the publication as a whole. If an average reader could
reasonably understand a statement as actionably factual, then there is an issue
for a jury's determination.

Nash. v. Keene Publishing Corp., 127 N.H. 214, 219 (1985) (citation s omitted). And,
even a provably false statement is not actionable if "'it is plain that the speaker is
expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather
than claiming to be in possession of objectively verifiable facts ....'" Gray v. St. Mnrtin 's
Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000) (quoting Haynes v. Alfred A. Knopf Inc., 8 F.3d
1222, 1227 (7th Cir. 1993)). As the Ninth Circuit has explained, "when an author outlines

5

 the facts available to him, thus making it clear that the challenged statements represent
his own interpretation of those facts and leaving the reader free to draw his own
conclusions, those statements are generally protected by the First Amendment."
Partington v. Bugliosi, 56 F.3d 1147, 1156-57 (9th Cir. 1995).

Riley v. Harr, 292 F.3d 282, 289 (1st Cir. 2002). See Thomas v. Telegraph Publishing Co., 155
N.H. 314, 339 (2007) (opinion not defamatory when based on disclosed non-defamatory
facts).
The statements the plaintiffs allege are defamatory may be separated into two
categories. The first consists of instances in which a defendant referred to a plaintiff as a
"patent troll." The second is composed of characterizations of the plaintiffs' conduct as a
"shakedown," "extortion," or "blackmail." The first amended complaint attributes to each
defendant the specific statement claimed to be defamatory, and refers to the documents
(attached as exhibits to the amended complaint) in which the statement appears. As they
appear in the documents (the exhibits), the challenged statements are noted in bold print. I
have used the documents to show the statements in context, but I consider the statements
alleged to be defamatory to be those specified in the coITtplaint. See White v. Ortiz, No. 13CV-251-SM, 2015 WL 5331279, at *5-6 (D.N.H. Sept. 14, 2015).

Defamation (Count I)
A.

Statements by American Bankers Association
The plaintiffs claim the American Bankers Association defamed them by referring to

them as "patent trolls."

6

 On December 17, 2013, the ABA ... made statements for the record before the
Senate Committee on the Judiciary. The ABA's statements are published in a
publication entitled "Protecting Small Businesses and Promoting Innovation by
Limiting Patent Troll Abuse." The statement was republished on ABA's website
at http://www.aba.com/Ad vocacy/LetterstoCongress/Pa~sLdefau lt. as~ and
continues to be republished on ABA's website as of the date of the filing of this
Complaint. See Exhibit D. The title of the ABA statement includes the phrase
"limiting patent troll abuse." The ABA's statement describes ATL's legitimate
licensing efforts and then refers to "patent trolls," plainly calling ATL a patent
troll. This references [sic] to ATL as a patent troll are false and defamatory and
have damaged ATL.
(Amended Complaint, ':[':[ 75-76.)
Exhibit D is a "Statement for the Record on Behalf of the American Bankers
Association For the Hearing 'Protecting Small Businesses and Promoting Innovation by
Limiting Patent Troll Abuse' Before the Senate Committee on the Judiciary." As
background, it describes "abusive patent litigation," by "patent assertion entities (PAEs)
who use overly broad patents, threats of litigation, and licensing fee demands in an effort to
extort payments from banks across the country." It continues,
Faced with threats of expensive patent litigation, many banks, and especially
smaller banks, find that their only option is to settle rather than face paying
_millions to defend against extortive claims of patent infringement. Well-funded
and sophisticated PAEs take advantage of community banks with limited
resources and little patent experience, and have amassed significant 'licensing'
fees from banks literally for the cost of mailing a threatening letter.
A recent example of this involves a PAE known as Automated Transactions, LLC
(ATL), which targeted banks throughout New England, New York, New Jersey,
Georgia, Virginia, Pennsylvania, in addition to an ever-growing number of
states. ATL claims that transactions facilitated by the use of the banks' ATMs
infringe one or more of its patents. What ATL fails to mention, however, is that
several of ATL's claims have been invalidated by courts. In particular, the
Supreme Court denied certiorari on A TL' s appeal of an April 23, 2012, decision
by the Federal Circuit to affirm a ruling by the Board of Patent Appeals and
Interferences invalidating several of ATL's patent claims. Despite this, the

7

 company continues to assert those patents and sue banks across the country,
including banks that do not even have ATMs. While ATL is only one of many
different entities that operate as PAEs filing frivolous patent infringement cases
against all industries, ATL' s tactics and efforts are a prime example of the
problem banks and other companies face, primarily with regard to vague and
threatening demand letters.
11

The Association goes on to use the terms patent assertion entities (PAEs)
11

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interchangeably with patent troll." For instance, it discusses legislation intended to
alleviate some of the incentives that drive abusive litigation by patent PAEs," and the
Association's support for legislation "that could potentially deter patent trolls from
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sending abusive demand letters .... "Later, it discusses other provisions that should be
included in patent troll legislation."
A second statement attributed to the Association provided an additional source for
the plaintiffs' defamation claim against it. According to the complaint,
On April 8, 2014, Rheo Brouillard testified on behalf of the ABA in the House of
Representatives. See Exhibit I. He described ATL as a patent troll." He s tated
tha t
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These patent trolls use overly broad patents, threats of litigation,
and licensing fee demands in an effort to extort payments from
banks across the country ... At present patent trolls are able to
make patent infringement claims for nothing more than the price
of a postage stamp and the paper the claim is written on.
Mr. Brouillard's statements on behalf of the ABA were false and defamatory
statements that damaged ATL. ATL was trying to capitalize on its extensive
research and development and marketing efforts that resulted in numerous
patents - it was not extorting paymen ts. Fur ther, ATL's efforts cost far more than
a postage stamp and a few sheets of paper.
(Amended Complaint, <JI<JI 81-82.)

8

 Exhibit I is a statement of testimony by the head of a Connecticut bank before a
subcommittee of the House of Representatives' Committee on Energy and Commerce. It
discusses that "abusive patent litigation remains a serious threat for banks and financial
institutions," and how as "end users of technology," banks "have been inundated by
abusive and deceptive patent demand letters by patent assertion entities (PAEs), commonly
referred to as 'patent trolls."' The statem ent continues with the excerpts quoted in the
amend ed complaint.
The gist of the testimony is the same as in the other Association statement. It
describes how "well-funded and sophisticated patent trolls take advantage of community
banks with limited resources and little patent experience, and have amassed significant
' licensing' fees from banks," who find "their only option is to settle, rather than paying
mill ions to d efend against extortive claims of patent infringement."
The witness mentions ATL specifically, stating,
I have seen this first hand at my bank. We, along with 30+ other Connecticut
banks, received a vague notice from a firm called Automatic Transactions, LLC
(ATL). The notice asserted that our ATMs operated in a way that infringed upon
their 'patent portfolio,' and simply listed thirteen sets of seven digit numbers as
proof. What the notice failed to mention was that similar suits in other sta tes had
already been overturned. A settlement would have cost at least $27,000 for 1ny
bank alone, and would likely have amounted to $300,000 for the 30 Connecticut
banks targeted.

B.

Statements by Credit Union National Association
The plaintiffs make the following claim against the Credit Union National

Association.

9

 Upon information and belief, on or about September 24, 2013, Robin Cook,
Assistant General Counsel for the Credit Union National Association, presented
a PowerPoint presentation entitled "Hot Topics in Litigation." See Exhibit A.
This presentation makes extremely defamatory statements regarding ATL. For
example, it includes a derogatory picture of a troll. The presentation deflned
patent troll as an entity that had no intention of making a product and
acknowledged that the term patent troll is pejorative. It also referred to ATL as a
"well-known patent troll." As set forth in earlier paragraphs in this Complaint,
ATL was simply pursuing a return on its constitutionally authorized patent
rights after having failed in its business efforts to bring Mr. Barcelou' s inventions
to market. Mr. Cook's statements on behalf of CUNA, highlighted herein and in
Exhibit A were false defamatory statements that da1T1aged ATL and Mr.
Barcelou.
(Amended Complaint, 111169-71.)
The PowerPoint presentation at Exhibit A, titled "Hot Topics in Litigation," starts
with a picture of a troll. The presentation continues with the question "What is a Patent
Troll?" and defines the term as "an entity that owns patents and enforces them in an
aggressive way with no intention to market the patented invention." It says it is a
"pejorative term," with "non-practicing entity" being the "polite term." It describes the
tactics of trolls as a "shakedown" in the form of demand letters threatening litigation in
order to "strong-arm entities into accepting a license," while "know[ing] that you will pay
for a license instead of going to court." ATL is listed with other entities under tbe heading

 CUNA also testified before the Senate and republished its testimony under the
same title as the ABA did. See Exhibit E. The CUNA representative stated patent
trolls made a business out of what "might look like extortion." It also referred to
ATL's licensing activities as being generated based on the "costs of a stamp." It
also states the need to control "trolls." These statements are false and defamatory
and have damaged ATL. ATL' s business was based on decades of research and
development, manufacturing, and business development efforts as set forth in
prior paragraphs, and was ba sed on far more that the cost of a stamp. ATL's
efforts were not akin to extortion, but were instead the efforts to make its
technology that was protected through the constitu tionally authorized P<ltent
System. Further, ATL was attempting to license patents that resulted from the
inventive and business efforts of its manager, David Barcelou over many years.
ATL was not a patent troll.
(Amended Complaint, <JI 77.)
The testimony in question was before the United States Senate Committee on the
Judiciary. Testifying on behalf of Credit Union National Association, the head of a Vermont
credit union said "the problem of patent trolls has gotten out of control." H e described his
own experience with receiving "an ill-research ed, vague demand letter from a company
that has made a business out of what, in my opinion, in another context, might look like
extortion. " He described the letter as being "from an entity vaguely suggesting that one or
more of our ATM machines infringed one or more of 13 patents." Later in the testimony,
the speaker refers to the entity sending the letters as "the troll." But there is no reference to
Barcelou or ATL in the testimony.
C.

Statements by Robert Stier and Pierce Atwood
The claims against Robert Stier and Pierce Atwood are as follows:
On April 3, 2013, an article entitled "Banks fighting 'patent troll' can move
forward together" appeared on the Internet at
http://www.bizjournals.com/boston.print-edition/2013/04/02/mass-banksaddress-atm-patent.hhnl. Bob Stier is quoted as saying "Automated

11

 Transactions' s suit amounts to nothing more than a shakedown of community
banks and that the company has intimidated more than 140 banks into settling."
Upon information and belief, this article continued to appear on the Internet.
(Amended Complaint, <[ 68.)
From 2013 until January 2014, Stier and Pierce Atwood were publishing a
defamatory web page on their web site that referred to ATL as a patent troll. ATL
was involved in patent litigati on at the time and ATL's counsel wrote to the
judge in the case to bring these defamatory remarks to the Court's attention. See
Exhibit F, which is two different web pages that were downloaded from Pierce
Atwood's web site in January 2014. ATL's trial counsel wrote a letter to Court
requesting an order barring the defendants from referring to Mr. Barcelou as a
patent troll. The Court issued such as [sic] order. See Exhibit G. Stier's and Pierce
Atwood's defamatory statements irreparably harmed the plaintiffs.
(Id. at<[ 78.)

The article in Exhibit F begins with a description of how a New York lawyer sent
letters to banks informing them that ATL had patents bearing on the operation of their
ATMs, and asking about their interest in obtaining a "sub-license" in advance of ATL suing
for patent infringement. It continues that Attorney Stier found decisions in which courts
invalidated an ATL patent and limited the scope of others. It concluded, "there was no
reason to believe that any bank needed a sub-license. The demand for a sub-license was a
classic shakedown." It described how Pierce Atwood formed "a group of banks and credit
unions willing to resist the shakedown," known as the "National Automated Transactions
Opposition."
Exhibit G is a series of orders issued in litigation by A TL against a number of
defendants. There the court ordered the defendants to refer to Mr. Barcelou as "the named
inventor of the patents-in-suit," and Transactions Holding as "the named assignee ." The

12

 plaintiffs say the orders were prompted by a posting on Pierce Atwood's website that
referred to ATL as a "patent troll."
A third alleged instance of defamation is described as follows:
In January 2015, Pierce Atwood published an article entitled "Pierce Atwood
Successfully Defends Community Banks and Credit Unions Agai.nst Aggressive
Licensing Demands from Unscrupulous Patent Troll." See Exhibit K. In the
article, which upon information and belief was written by Mr. Stier, ATL was
referred to as a patent troll. For the reasons previously discussed, this was a false
and defamatory statement that damaged ATL. In September 2015, Mr. Stier
presented at a Maine Bankers Association Banking Law Seminar, and upon
information and belief, referred to ATL as a patent troll. See Exhibit L. Mr. Stier's
statements were false and defamatory and damaging to ATL.
(Amended Complaint, 111184-85.)
Exhibit K appears to be an article from Pierce Atwood's website that describes
Attorney Stier's success in defeating claims by ATL that ATMs belonging to a gro up of
banks infringed on ATL' s patents. It relates to how ATL encouraged settlements by keeping
its licensing fees below the cost of litigating a defen se to a lawsuit. It concludes by quoting
Attorney Stier about his strategy, which "protected an entire class of institutions from
harassment by an unscrupulous patent troll."
Another article on the Pierce Atwood website (Exhibit L) makes a similar claim in
promoting Attorney Stier's appearance before a Maine Bankers Association Banking Law
Seminar, at which he will present a "Patent Troll Update." It describes how "after more
than 100 banks were brought together in 2012 to defend against a patent troll that
den1anded licenses for their ATMs, that particular patent troll lost its appetite for patent

13

 litigation and abandoned its claims." It says "Bob Stier ... su ccessfully assembled the joint
defense group that stood up to Automated Transactions, LLC. ... "

0.

Statements by W. John Funk and Gallagher, Callahan & Gartrell
This claim involves statements made during a podcast. The complaint alleges

that
Upon information and belief, on November 12, 2013, a transcript of an interview
with John Funk appeared on the website of Gallagher, Callahan and Gartrell. The
webpage was entitled '"Businesses Offering ATM Services - Beware Patent
Trolls' with John Funk, Ga llagher, Callahan & Gartrell in New Hampshire."
Funk refers to ATL and Mr. Barcelou and notes that there' s a whole industry of
patent trolls ..." This implication that ATL is a patent troll was a defamatory
statement that has damaged ATL. See Exhibit B. Mr. Funk and GCG have made
numerous other references to ATL as a patent troll.
(Amended Complaint, <JI 72.)
The interview b egins with the moderator describing Automated Transactions, LLC
as having "been quite busy with suits around patent infringement, which has impacted
quite a few businesses large and small." Mr. Funk responds that he has known about ATL
"for about two years," and that he "had clients who first started receiving letters from
Automated Transactions claiming that they had infringed a p atent that it holds that relates
to an interface between automated teller machines, so-called ATMs, and the internet."
When the moderator asks if "suing for patent infringem ent is Mr. Barcelou's prin1ary
source of income," Funk says "there's a whole industry of patent trolls these d ays that
secure patents that may or m ay n ot be valid when challenged, proceed to make claims on
companies and harvest monies that they may not be entitled to."

14

 E.

Statements by Mascoma Savings Bank and Stephen Christy
With resp ect to these defendants, the plaintiffs allege,
On or about April 6, 2014, the Washington Examiner published an article by the
Associated Press entitled "New Hampshire bill aims to nip fa lse p atent claims"
on the Internet. In the article, Steve Christy, as President of Mascoma, describes
his bank's business with ATL and is quoted as calling ATL's activities ilS
"outright blackmail." See Exhibit H. On Apri l 7, 2014, the article referred to in the
preceding paragraph was published by the Concord Monitor on the Internet and
in print. (Amended Complaint, <JI'JI 79-80.)

This Associated Press report in Exhibit H discusses how "lawmakers are considering
making it harder for companies with false patent claims - known as patent trolls - to
demand that business pay licensing fees or be sued. " It describes how
New Hampshire banks and credit unions - with one exception so far - have paid
license fees when accused of patent infringement for dispensing cash through
their ATMs. Two years ago, Mascoma Savings Bank joined 96 other banks and
credit unions in challenging the claim in court. 'It's ou tright blackmail and we're
not going to be a party to it,' said Mascoma President Steve Christy. Christy paid
a lawyer a fee that was less than the roughly $40,000 demanded by patent holder
Automated Transaction LLC.
It quotes an attorney for ATL as saying that while " there are some companies that are

patent trolls," which" go out and buy up patents," ATL "isn' t one of them."

Discussion
The References to "Patent Troll"
Viewed favorably to the plaintiffs, the complaint cites each defendant with the
exception of Mascoma Savings Bank and Mr. Christy, as referring to them as "patent trolls,"
directly or indirectly. In each instance, however, the facts upon which the label is based are
evident from the con text, and the complaint's specific allegations against the defendants do

15

 not include claims that the underlying assertions of fact are false or leave undisclosed facts
to be implied. For instance, the plaintiffs accuse the American Bankers Association of
"describ[ing] ATL's legitimate licensing efforts and then refer[ing] to 'patent trolls,' plainly
calling ATL a patent troll." The plaintiffs only cite the reference to ATL as a "patent troll" as
false and defamatory. Similarly, the plaintiffs don't contest Rheo Brouillard's factual
assertions leading up to his conclusion that the conduct amounts to that of a "patent troll."
Instead, the plaintiffs explain that ATL was simply "trying to capitalize on its extensive
research and development and marketing efforts that resulted in numerous patents."
The plaintiffs also dispute the conclusion in Credit Union National Association's
powerpoint that ATL is a "patent troll," on the basis that the underlying facts describe an
effort by A TL to "pursu[ e] a return on its constitutionally authorized patent rights after
having failed in its business efforts to bring Mr. Barcelou's inventions to market."
Unders tandably, the plaintiffs disagree that their efforts make them deserving 0£ the label,
"patent troll," but clearly it is a matter of opinion.
Even if the plaintiffs didn't implicitly accept the defendants' fachial underpinning
for the term "patent troll," the facts on which the characterization is based are evident from
the context and the complaint doesn't include an allegation that th ose facts are false.
Neither does it say the existence of other undisclosed facts is implied. Instead, the plaintiffs
contend
Each of these defamatory statements described herein were published by the
respective Defendants to third parties, without a privilege to do so. Each is also

16

 false. Neither ATL nor Mr. Barcelou are trolls, shakedown artists, extortionists or
blackmailers.
It is well known that being labeled a patent troll, an extortionist, as conducting a

shakedown, and the like, are disparaging and damaging, particularly to
businesses. The damaging effects of being labeled a "patent troll" are well
known.
(Amended Complaint, 11 87-88).
When the opinion is based on facts that are disclosed and when it wouldn' t be
understood to imply the existence of undisclosed facts, then the opinion is not actionable.

Bourne v. Arruda, No. 10-CV-393-LM, 2011 WL 2357504, at *4 (D.N.H. June 10, 2011) (citing
Pease v. Telegraph Publishing Co., 121 N.H. 62, 66 (1981)). See McKee v. Cosby, 874 F.3d 54, 6061 (1st Cir. 2017) ("[W]hen the speaker outlines the facts available to him, thus making it cle<lr
th<lt the challenged statements represent his own interpretation of those facts and leaving the
reader free to draw his own conclusions, those statements are generally protected by the First
Amendment." (quotation omitted)). From the context, each defendant used "patent troll" to
characterize entities, including ATL, which engage in patent litigation tactics it viewed as
abusive. And in each instance the defendant disclosed the facts that supported its
description and made ATL, in the defendant's mind, a patent troll. As such, to the extent the
defendants accused the plaintiffs of being a "patent troll," it was an opinion and not actionable.
A second reason the statements qualify as protected opinion is that to be actionable,
the statement cannot be one that is "incapable of being proven true or false." McCabe v.

Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (statement that plaintiff engaged in a "scam" was
protected opinion, since "readers may have disagreed with the conclusion that it was a

17

 scam, but they could not have said that the conclusion was false, because there is n o core
meaning of scam to which Rattiner's facts and allegation can be compared.")
To be sure, some courts have defined the term. The plaintiffs cite one such case and there
are others. See Amgen, Inc. v. F. Hoffman-La Roche Ltd., 581 F. Supp. 2d 160, 210 (D. Mass.
2008) ("Patent trolls arc 'nonpracticing entities' who ' do not manufacture products, but

instead hold . . . patents, which they license and enforce against alleged infringcrs."')
(quoting Taurus IP v. DaimlaChrysler Corp., 519 F.Supp.2d 905, 911 (W.D.Wis.2007).
There are other definitions and Pot a ll of them are neccssarlly pejorative. Se<:: Ronald

J. Mann, Do Patents Facilitate Financing in the Software Industry? 83 TEX. L. REV . 961, 1023-24
(2005) (defining "patent 'trolls'" more neutrally as "firms that have no interest in a licensing
~quilibrium
~e1Yi 1'g J

because Lhi:v produce no products of their own," but concluding that "trolls are

f ur,ction as in• .~nn1~diaries that specialize in litigation to <:xploit the value of

patents that carmot be exploited effectively by those that h ave originally obtained them.
Thn t is not in and of itself a bad thing").

The pt:jorativP term "troll" is used by some to refer to any p~u'ty that doesn't
actually produce goods or services. Indeed, some use "troll" to refer to anyone
v;ho is suing them, even p racticing entities. Others would exclude some
entities-notabl)' universities and individual inven tors -from the troll definition.
Still others wou ld limit patent trolls furth er, to include only PAEs - companies
whose primary line of business is filing patent suits. And even that definition is
too broad for some, who would limit the term pa tent troll to those who assert
patents they bought from others, only those who assert invalid patents, or only
those who engage in certain "abusive" tacti cs in patent litigation, such as
pressuring allegedly infringing manufacturers by threatening those
manufacturers' end-user customers, or seeking nuisance-value settlements. The
definitional question is sufficiently muddled that two of the authors designed a

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 taxonomy of twelve different entity types, allowing people to decide for
themselves who fits in the troll category.
John R. Allison, Mark A. Lemley, & David L. Schwarz, How Often Do Non-Practicing Entities

Win Patent Suits? 32 BERKELEY TECH. LAW J. 237, 242 (2018).
The broad range of activity encompassed by the term makes it difficult to define. See
Jason Rantanen, Slaying the Troll: Litigation As an Effective Strategy Against Patent Threats, 23
SANTA CLARA COMPUTER & HIGH TECH. L.J. 159, 164 (2006); John M. Golden, "Patent Trolls"

and Patent Remedies, 85 Tex. L. Rev. 2111, 2161, n. 7 (2007) ("lTJhe magnitude of what
contemporary fashion terms the "patent-troll problem" remains substantially unknown, in
part because a widely accepted definition of a patent troll has yet to be devised."). Given
the imprecise meaning, calling another a "patent troll" doesn't enable the reader or hearer
to know whether the label is true or false, just as statements that a person "is racist are
clearly expressions of opinion that cannot be proven as verifiably true or false." Squitieri v.

Piedmont Airlines, Inc., No. 3:17CV441, 2018 WL 934829, at *4 (W.D.N.C. Feb. 16, 2018).
Lastly, the statements are not actionable because to call one a "patent troll" or
"unscrupulous," or to say one's conduct is like "extortion" or "blackmail," is protected as
"mere ' rhetorical hyperbole.' This is a well-recognized category of, as it were, privileged
defamation," (which] consists of terms that are either too vague to be falsifiable or sure to
be understood as merely a label for the labeler's tmderlying assertions." Dilworth v. Dudley,
75 F.3d 307, 309 (7th Cir. 1996) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)).

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 In this sense, "patent troll" is "loose, figurative language, hyperbole and epithet."

Douglas v. Pratt, No. 98-CV-416-M, 2000 WL 1513712, at *4 (D.N.H. Sept. 29, 2000). It is
stated as an alternative description for bodies otherwise known as "patent assertion" or
"non-practicing" entities.

The References to "Shakedown," "Extortion," and "Blackmail"
A similar analysis applies to the descriptions of the plaintiffs' conduct as a
"shakedown," "extortion," or "blackmail." "Courts have consistently found that statements
calling into question the legitimacy of litigation are non-actionable statements of opinion."

Live Face on Web, LLC v. Five Bora Mold Specialist Inc., No. 15 CV 4779-LTS-SN, 2016 WL
1717218, at *2 (S.D.N.Y. Apr. 28, 2016). So, statements by an American Bankers Association
representative that "these patent trolls use overly broad patents, threats of litigation, and
licensing fee demands in an effort to extort payments from banks across the countiy," and
by Mr. Christy that "ATL's activities [constitute] 'outright blackmail,"' and by Mr. Stier that
ATL' s lawsuit was a "shakedown," are "of the 'loose, figurative, or hyperbolic' sort that is
not actionable for defamation." Small Business Bodyguard Inc. v. House of Moxie, Inc., 230 F.
Supp. 3d 290, 312 (S.D.N.Y. 2017) (quotation omitted). See Bourne v. Arruda, No. 10-CV-393LM, 2011 WL 2357504, at *5 (D.N.H. June 10, 2011) (reference to plaintiff as "terrorist" was,
in context, a "hyperbolic expression of his opinion about Bourne and his litigation tactics");

Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 128 (1st Cir. 1997) (citing as examples of
hyperbolic opinion, Letter Carriers v. Austin, 418 U.S. 264, 284-86 (1974) (use of the word
"traitor" to define a worker who crossed a picket line was not actionable); Greenbelt Co-op.

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 Publishing Assoc. v. Bresler, 398 U.S. 6, 13-14 (1970) (newspaper's characterization of a
developer's negotiating position as "blackmail" was not defamatory; the word was simply
an epithet and, under the circumstances, did not suggest commission of a crime); Phantom

Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 728 (1st Cir. 1992) (calling a play "a ripoff, a fraud, a scandal, a snake-oil job" was mere hyperbole and, thu s, con stitutionally
protected)).
The plaintiffs say they disagree with Mr. Brouillard's assertion that that th eir
litigation "requires only a piece of paper and a postage stamp," but that statement is readily
understood as hyperbole and not a statement of fact.
The claims for defamation against the defendants in Count I are dismissed, except as to
Mascoma Savings Bank and Stephen Christy who are granted summary judgment.
Violation of Consu111.er Protection. Act (Count II)

The plaintiffs b ase their claim of violations of the Consumer Protection Act on the
disparagement of their patent activity. The claimed disparagement is based on the
defendants' purportedly false assertions of fact. See RSA 358-A:2, VIII (statute violated by
"disparaging the goods, services, or business of another by false or misleading
representation of fact"). Since the ch allenged misrepresentations are not factual, the
Consumer Protection Act claim in Count II is dismissed as well. See Douglas v. Pratt, at *7.

Conclusion
For the reason s given, the motions to dismiss filed by the American Bankers
Association (doc. no. 39), Credit Union National Association (doc. n o. 73), Robert Stier and

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 Pierce Atwood, LLP (doc. no. 77), W. John Funk and Gallagher, Callahan & Gai;:trell (doc.
no. 79), and the motion for summary judgment of Mascoma Savings Bank and Stephen F.
Christy (doc. no. 87) are GRANTED.

SO ORDERED.

~~

DATE: MARCH 19, 2018

BRIANT. TUCKER
PRESIDING JUSTICE

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