United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
lawsuit, plaintiff Vince Amoroso asserts defamation claims
against four former colleagues at Sentry Insurance, a Mutual
Insurance Company, arising out of a memorandum circulated
among Sentry's Board of Directors ("the
Board"). The memorandum purported to apprise the Board
of potential issues arising under the attorney-client
privilege using three different "scenarios, " each
involving an unnamed "Director X." Defendants have
moved to dismiss on three grounds: (1) the statements forming
the basis for plaintiff's defamation claims are incapable
of having defamatory meaning; (2) the statements at issue are
subject to the common interest privilege; and (3)
plaintiff's alleged injury is not cognizable under
defamation law. (Dkt. #24.) Although a close question in
light of the context and arguably innocuous indirect nature
of the defamatory statements, the court will nevertheless
deny defendants' motion for the reasons set forth below.
Vince Amoroso is a citizen of Florida, where he resides. From
2003 until 2014, Amoroso served as a member on the Board of
Directors of Sentry Insurance, which has its principal place
of business in Stevens Point, Wisconsin.
Dale R. Schuh, Kenneth Erler and Peter McPartland all reside
in and are citizens of Wisconsin, as well as officers of
Sentry Insurance during the times relevant to this lawsuit.
Schuh was the Chief Executive Officer of Sentry and Chairman
of its Board; Erler was Sentry's Senior Vice President,
Chief Administrative Officer and General Counsel; McPartland
was Sentry's President, later succeeding Schuh as Chief
Executive Officer and Chairman of the Board. Finally,
defendant James Pearson is a citizen of Illinois and was
Chairperson of Sentry's Governance Committee during the
times relevant to this lawsuit.
was a member on Sentry's Board from 2003 until 2014, for
which he received about $200, 000 per year in compensation.
Between 2003 and 2012, Amoroso was elected to consecutive
three-year terms, consistent with Sentry's Governance
Committee customary practice of recommending to re-elect a
Board member whose term is expiring at a regularly scheduled
Board meeting in November. At a meeting in the following
February, the Board would then "perfunctorily adopt
the recommendation of the Governance Committee." (Compl.
(dkt. #1) ¶ 53.) Finally, during a meeting the following
April, the Board's selections are typically
respect to his own qualifications, Amoroso has been a
practicing actuary for more than 40 years. He became a member
of Sentry's Audit Committee in 2003, chairing it between
2006 and 2011. Amoroso further asserts that until his removal
in 2014, Sentry's Board of Directors had consistently
included an actuary as a member since the early 1980s.
The Attorney-Client Privilege Memorandum
Board meeting on February 26, 2012, Amoroso alleges that
defendants Schuh or Erler developed three "scenarios,
" each involving a director referred to only as
"Director X." Those scenarios were then set forth
in a memorandum titled "Application of the
Attorney-Client Privilege, " which was attached to
another a memorandum titled "Overview of the
Attorney-Client Privilege and Work Product Doctrine."
(Defs.' Opening Br. Ex. A (dkt. #25-1) ECF 2.) An
accompanying cover letter explains that the two memoranda
were being circulated in response to requests by "a
number of Directors" after the February 26 Board meeting
for "updated information relating to the handling of
sensitive information, and the Attorney-Client
Privilege." (Id.) The cover letter further
explains that "[t]he second memo applies these concepts
in specific situations and is self explanatory."
the expressly stated purposes of the memoranda, plaintiff
nevertheless asserts that the three scenarios "were
prepared with false statements of fact in order to disparage
[him] and with the purpose . . . [of] inducing members of the
Governance Committee and Board of Directors to remove or not
re-nominate [him] to the Board[.]" (Compl. (dkt. #1)
¶ 17.) Although the second memorandum only named a
generic "Director X, " plaintiff further asserts
that the recipients knew he was the individual to whom the
memorandum referred. (Id. at ¶ 16.)
opening scenario set forth in the second memorandum, Director
X "uses unfortunate terminology describing [an]
actuarial methodology" in emails sent to auditors
outside of the company, which is involved in litigation with
the IRS. (Compl. (dkt. #1) ¶ 18.) Plaintiff alleges that
when he complained this scenario was inaccurate, Erler
informed him that Director X's use of "unfortunate
terminology" is actually referring to Amoroso's use
of the term "cushion" in a first draft of a memo.
(Id. at ¶ 19.) Plaintiff asserts that this
first scenario is still misleading because (1)
"cushion" was removed in the final version of ...