Lerato Nomvuyo MZAMANE, Plaintiff, v. Oprah WINFREY, et al., Defendants, 693 F. Supp. 2d 442

MEMORANDUM EDUARDO C. ROBRENO, District Judge. TABLE OF CONTENTS I. INTRODUCTION.........................................................461 II. BACKGROUND...........................................................461 A. F&cts 461 1. Plaintiffs Background ..............................................461 2. Winfrey’s Background ..............................................462 3. Background of OWLAG.............................................462 4. Plaintiffs Employment Relationship with OWLAG......................462 5. Allegations of Abuse of OWLAG Students.............................463 6.

Winfrey’s Response to the Events at OWLAG..........................464 i. October 20, 2007 Meeting .......................................465 ii. November 5, 2007 Press Conference..............................465 7. Aftermath of Winfrey’s Comments....................................465 B. Procedural History.....................................................466 III. DISCUSSION.............................................................466 A.

Summary Judgment Standard...........................................466 B. Choice of Law Analysis.................................................467 1. Pennsylvania versus Illinois..........................................469 i. Defamation....................................................470 ii. False Light....................................................473 iii. Intentional Infliction of Emotional Distress........................473 2. Pennsylvania versus South Africa.....................................473 i. Defamation....................................................473 ii.

False Light....................................................474 iii. Intentional Infliction of Emotional Distress........................475 3. Pennsylvania Law is Consistent with Due Process......................475 C. Defamation Analysis....................................................476 1. Pennsylvania Defamation Law.......................................476 2. Analysis under Pennsylvania Law....................................478 i. Capable of Defamatory Meaning.................................479 ii. Of and Concerning Plaintiff......................................479 iii.

Specific Statements at Issue.....................................480 a. October Meeting...........................................480

(1) Actionable statements...................................480

(2) Non-aetionable statements ...............................490 b. November Press Conference.................................490

(1) Actionable statements ...................................490

(2) Non-actionable statements ...............................495 3. First Amendment Implications.......................................497 i. Plaintiffs Status as a Public Figure...............................497 ii. Actual Malice..................................................505 D. False Light Analysis ...................................................510 E. Intentional Infliction of Emotional Distress Analysis........................512 IV. CONCLUSION............................................................512 I.

INTRODUCTION Plaintiff Lerato Nomvuyo Mzamane (“Plaintiff’) brings this action for defamation, and related causes of action, stemming from comments made by Oprah Winfrey (“Winfrey”) regarding Plaintiffs performance as headmistress of the Oprah Winfrey Leadership Academy for Girls (“OWLAG”). Plaintiff claims that she suffered significant damage to her professional reputation as a result of Winfrey’s comments. Before the Court is Defendants’ motion for

summary judgment. The Court concludes that, after a conflict of laws analysis, Pennsylvania law applies to Plaintiffs substantive claims.

The Court further concludes that under Pennsylvania law certain of the statements made by Winfrey at a meeting with parents of OWLAG students in October 2007 and at a news conference in November 2007, are capable of defamatory meaning and “of and concerning” Plaintiff, that under First Amendment law Plaintiff is a limited public figure, but that if believed by the jury, Plaintiff has pointed to sufficient evidence in the record to satisfy the clear and convincing evidence standard for actual malice.

Accordingly, Plaintiffs claims for defamation and false light will proceed to the jury, however, judgment will be entered in Defendants’ favor as to Plaintiffs claims for intentional infliction of emotional distress. II. BACKGROUND A. Facts 1. Plaintiffs Background Plaintiff was born in Teyateyaneng, Lesotho in 1969 and in 1990 graduated from the University of Jos in Nigeria with a bachelor’s degree in special education. (Am. Compl. ¶¶ 9-10.) In 1992, she obtained a Master’s Degree from St.

Michael’s College in Colchester, Vermont, during which time she earned her MEd in Curriculum Development and Instruction as well as her K-6 Teaching License. (Id. ¶ 10.) From 1992 to 1995, Plaintiff taught the fourth grade class at Beverly J.

Martin Elementary School in Ithaca, New York. (Id. ¶ 13.) Plaintiff was accepted into Cornell University’s doctoral program in education in 1995. (Id. ¶ 14.) Plaintiff studied Educational Administration, however, she ultimately did not earn a PhD. (Lerato Nomvuyo Mzamane Dep. 385:5-12, Aug. 24, 2009.) From 2000 through 2004, Plaintiff worked as Vice Principal, Dean of Faculty and Academic Dean at Germantown Friends Lower School in Philadelphia (“Germantown”), and was promoted to Assistant Head of School for Operations for Germantown in 2004. (Am.

Compl. ¶¶ 16-17.) Plaintiff continued her employment at Germantown until December 2006, at which time she accepted a position as a Consultant for Learner Education and Development at OWLAG. (Id. ¶ 18.) 2. Winfrey’s Background Winfrey is the founder of co-defendants Harpo Productions, Inc. and Harpo, Inc. (collectively, “Harpo”). She is the creator and host of The Oprah Winfrey Show, which is a syndicated television program that is produced by Harpo and appears on local television stations throughout the United States and the world.

The Oprah Winfrey Show has been rated the number one television show in American television for twenty-four seasons. (Oprah Winfrey Dep., 18:12-14, Oct. 6, 2009.) Winfrey is involved intimately in running the operations of Harpo, which focuses on media and communications, including television, radio, and a magazine. (Id. at 15:17-22.) In 2009, Winfrey was named by Time Magazine as one of the 100 most influential people in the world. See The Time 100: The World’s Most Influential People, Time Magazine, May 11, 2009. 3.

Background of OWLAG OWLAG is a private academy opened by Winfrey in South Africa, and run by the Oprah Winfrey Leadership Academy Foundation (the “Foundation”). OWLAG provides education for children from impoverished families. (Winfrey Dep. 12:3-13:6.) OWLAG began as a partnership between the Foundation and the government of South Africa. (Id. 18:23-19:3.) OWLAG has 28 buildings on a 52-acre campus in a small town called Henley-onKlip near Johannesburg, South Africa. The annual operating costs for OWLAG are approximately $10,000,000. These costs are funded by the Foundation.

Winfrey herself was involved with multiple aspects of the planning at OWLAG, such as the architecture and construction of the school. (Id. 14:13-15.) At OWLAG, students live in dormitories on the school’s campus and are supervised by employees present in the dorms (the “Dorm Parents”) at the conclusion of the students’ academic day.

At the time OW-LAG opened it did not have Dorm Parents in place. (Id. 37:7-17.) Winfrey herself was not involved with the hiring of the Dorm Parents. (Id. 37:10-17.) The school opened on January 2, 2007, with an approximate enrollment of 150 seventh and eighth grade female students. (J. Samuel Decl. ¶ 2.) The opening of OW-LAG attracted media attention, including coverage by the Philadelphia Inquirer and CNN. (See Defs.’ Mot. Summ. J. Ex. C.) 4.

Plaintiffs Employment Relationship with OWLAG According to Plaintiff, at the time she accepted the consultancy position at OW-LAG in December 2006, her understanding was that she would be mentored by the Interim Head of Academy, Joan Countryman, and would ascend to the position of the Head of Academy at some point in 2008. (Am. Compl. ¶¶ 22-23.) Plaintiff entered into her employment agreement for the consultancy position on December 28, 2006, however, within several days of her arrival in South Africa, she was appointed to the position of the Head of Academy (“Headmistress”) in place of Ms.

Countryman. (Id. ¶ 23.) Plaintiff entered into a written employment contract with the Foundation, which provided a fixed term of employment from January 11, 2007 to December 31, 2007. (Defs.’ Mot. Summ. J. Ex. D.) As Headmistress, Plaintiffs “charge was to be responsible for the girls and the curriculum and the residential life of the girls at the school.” (Winfrey Dep. 49:9-11.) Plaintiff was responsible, along with another OWLAG employee (Sonya Anderson), for hiring the Dorm Parents. Plaintiffs duties did not include media or public relations obligations related to the administration of OWLAG.

Plaintiff asserts that throughout her tenure as Headmistress she was in constant contact with Winfrey, as well as representatives of Harpo and members of the Foundation. Plaintiff contends that the substance of these communications included general administration of OWLAG, planning for OWLAG events, the progress of individual OWLAG students, and interactions with parents of OWLAG students. (Am. Compl. ¶ 24.) As Headmistress, Plaintiff was also responsible for dealing with complaints from OWLAG students, specifically complaints about their interaction with the Dorm Parents.

Plaintiff contends that she would often hear grievances from students about their treatment by Dorm Parents. After considering the merits of the complaints, Plaintiff would often instruct the respective Dorm Parent to apologize to the students and discuss the substance of the complaints with the students. (Mzamane Dep. 32:7-15.) 5.

Allegations of Abuse of OWLAG Students At some point during the period of April-June 2007, Plaintiff received a letter from several OWLAG students complaining of the treatment by one of the Dorm Parents, Tiny Makopo (“Makopo”). (Id. 32:2-4.) Plaintiff claims that she confronted Makopo with the letter and instructed her to apologize to the students under her supervision. (Id. 32:5-24.) No media coverage ensued at the time this event occurred. On September 27, 2007, the South African Newspaper Sowetan published an

article (the “Sowetan Article”) which reported on the departure of a student, Aviwe Mncwabe (“Mncwabe”), from OWLAG. (Am. Compl. Ex. B.) The Sowetan

Article stated that Mncwabe characterized her experience at OWLAG as a “nightmare” and quoted Mncwabe’s mother as saying that her daughter “suffered emotional abuse” while attending the school. (Id.) The Sowetan

Article also recounted statements by Mncwabe’s mother claiming that she complained to the administrators at OWLAG concerning abusive treatment by an unidentified Dorm Parent. (Id.) Mncwabe’s mother was quoted in the Sowetan

Article to say: “I spoke to the principal and she promised to look into the problem but never did. When I confronted her about it, it became clear to me that she was supporting her staff and I had no choice but to pull her out of the school.” (Id.) Plaintiff acknowledges that prior to publication of the Sowetan Article, Mncwabe had complained of being homesick and wanting to leave OWLAG, and that a teleconference was held on September 13, 2007, with Mncwabe’s parents concerning the student’s desire to leave OWLAG.

Plaintiff contends that she did have a conversation with Mncwabe’s mother concerning complaints about treatment by a particular Dorm Parent (Nomvula Zulu), but that none of the complaints discussed involved physical or sexual abuse by a Dorm Parent. (See Mzamane Dep. 163-64.) In September 2007, another OWLAG student, identified for purposes of confidentiality only as “B.L.,” met with Plaintiff and expressed concerns about the treatment she was receiving from Dorm Parent Makopo.

Plaintiff recognized that B.L. was having difficulty expressing her problems to Plaintiff, and therefore, Plaintiff encouraged B.L. to speak with the school’s psychologist and/or social worker. Plaintiff contends that B.L. never suggested to her that Makopo had subjected B.L. to any type of physical or sexual abuse during this meeting. On October 1, 2007, Plaintiff left South Africa for the United States to participate in various meetings related to the administration of OWLAG, including a meeting with Winfrey to discuss applicants for the incoming classes at OWLAG.

During Plaintiffs absence, complaints began to surface from students regarding abusive treatment by Dorm Parent Makopo. On October 1, 2007, one of the OWLAG staff members, Ifunaya “Funa” Maduka met with a group of seven students who complained of abusive treatment by Makopo and stated that they witnessed Makopo sleeping in the same bed with an OWLAG student. (I. Maduka Decl. ¶ 2.) This information was relayed to John Samuel (“Samuel”), Chief Executive Officer of OWLAG.

Samuel held a meeting with approximately fifteen students on October 3, 2007, during which the students expressed concerns of unfair treatment by the Dorm Parents. (J.

Samuel Decl. ¶ 7.) After receiving this information, Samuel spoke with the school psychologist, Lerato Mabenge, who stated that she was aware of certain evidence indicating acts of sexual abuse by Dorm Parent Makopo. (Id. ¶ 8.) On October 6, 2007, Samuel alerted Winfrey to the allegations of abuse, and they agreed that the authorities should be informed. (Id. ¶ 9.) Samuel contacted the South African authorities concerning the allegations of abuse on October 8, 2007. (Id.) Following a criminal investigation by the South African police, Makopo was arrested and charged with child abuse. 6.

Winfrey’s Response to the Events at OWLAG On October 8, 2007, Plaintiff attended a meeting with Winfrey in Chicago. This meeting was originally scheduled to allow Winfrey and Plaintiff to discuss applicants for the incoming classes of students at OWLAG.

During this October 8, 2007 meeting, Winfrey informed Plaintiff that she would be placed on administrative leave with pay pending an internal investigation of the alleged misconduct at OW-LAG. (Mzamane Dep. 14:10-12.) The parties dispute whether Plaintiff was allowed an “opportunity to talk at that meeting.” (See id. 57:17-58:22.) Plaintiff subsequently was informed that her employment contract would not be renewed upon its expiration on December 31, 2007.

On October 17, 2007, Samuel released a public statement on behalf of OWLAG which stated that OWLAG was conducting an internal investigation into the allegations of abuse. (Defs.’ Mot. Summ. J. Ex. C-15.) This public statement specifically declared the following with respect to Plaintiffs involvement in the internal investigation: “[i]n order to ensure an impartial investigation, the Head of Academy and the Academy Administration mutually agreed she would take a paid leave of absence.

The Head of Academy is not the subject of the allegation of misconduct.” (Id.) Winfrey released a personal statement in conjunction with OWLAG’s public statement which provided: “[njothing is more serious or devastating to me than an allegation of misconduct by an adult against any girl at the academy. I will do everything in my power to ensure their safety and well-being.” (Id.) The release of this public statement, along with the dismissal of Makopo from OWLAG, generated significant attention from the international media. (L. Halliday Deck ¶ 11.) i.

October 20, 2007 Meeting On October 20, 2007, a meeting was held in South Africa between Winfrey and the parents of OWLAG students in order to discuss the abuse allegations and corresponding internal investigation (the “October Meeting”). The October Meeting was a private meeting between Winfrey and the students’ parents regarding the mistreatment of the students by the Dorm Parents. Plaintiff contends that several statements, set forth in detail below, made at the October Meeting address Plaintiffs knowledge and/or involvement in the misconduct and form the basis for her defamation claim. ii.

November 5, 2007 Press Conference Winfrey held a press conference on November 5, 2007 (the “November Press Conference”). The November Press Conference was structured as a teleconference in which reporters located in South Africa asked questions to Winfrey, who was located in Chicago. The November Press Conference was available electronically at Harpo’s website until May 2009. Plaintiff asserts that several statements made by Winfrey, set forth in detail below, during the November Press Conference were defamatory. 7.

Aftermath of Winfrey’s Comments Significant media coverage of the controversy at OWLAG ensued following the November Press Conference. In Plaintiffs view, the media coverage portrayed her in a negative light with respect to her supposed role in the physical and sexual abuse by the Dorm Parents uncovered at OWLAG. On November 8, 2007, Plaintiff issued a press statement which stated that she had no knowledge of the alleged abuse and did not take any action to cover-up such abuse (the “Press Release”).

The Press Release, in its entirety, states: I was greatly shocked and deeply saddened when I recently heard of the allegations of abuse at the Academy. My prayers and heart go out to the children and families experiencing the trauma, and to the entire school community. Unfortunately, in the understandable and shared shock, the response to this terrible crisis has involved false allegations made about me. Contrary to reports, I had no knowledge of this abuse. I did not and would never participate in any such cover up.

As the head of academy, my track record has been of one who acted decisively and in the best interests of the child where there was even a hint of inappropriate speech or action on campus. With two decades of experience across the African continent and the United States working with children and schools, and drawing on the lessons of parenthood, I did everything I could to build an open school community where the child’s voice was honored and where youthful frivolity lived side by side with an intense focus on academics.

I have always been and will always be a passionate advocate for children and their families, and a South African patriot devoted to participating in the important work of nation-building through education. I care deeply for the students at the Academy and their families. As I have told these marvelous young ladies many times, they are some of the most phenomenal people who have ever graced this earth. (Defs.’ Mot. Summ. J. Ex.

D-19.) Plaintiff alleges that as a result of the highly publicized statements by Winfrey regarding the alleged abuse, she was precluded from finding employment in the educational field until August 2008, at which time she obtained a temporary consultancy position with Bridge International Academy in South Africa. (Mzamane Dep. 8:8-12.) As of November 2008, Plaintiffs position at Bridge International Academy became permanent. (Id.) B. Procedural History On October 3, 2008, Plaintiff filed a complaint in the Court of Common Pleas of Philadelphia County.

On October 10, 2008, Defendants removed the action to this Court based upon diversity of citizenship. Plaintiff filed an amended complaint on February 2, 2009, in which she alleged claims for defamation, false light, and intentional infliction of emotional distress. Defendants filed a motion for

summary judgment and a hearing was held before this Court on December 16, 2009. After permitting supplemental briefing by the parties as to certain issues, Defendants’ motion for

summary judgment is now ripe for adjudication. III. DISCUSSION Plaintiffs claims for defamation, false light, and intentional infliction of emotional distress are based on a series of allegedly defamatory statements made by Winfrey at the October Meeting and the November Press Conference. The Court will address each claim in turn. A.

Summary Judgment Standard Pursuant to Federal Rule of Civil Procedure 56(c), a motion for

summary judgment will be granted, drawing all inferences in favor of the nonmoving party, where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir.2001). The “mere existence” of disputed facts is insufficient to defeat a motion for

summary judgment, rather a showing of a genuine issue regarding a material fact is required. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis added). A factual dispute is deemed to be “material” where its resolution might affect the outcome of the case pursuant to the applicable law. Id. at 248, 106 S.Ct. 2505 (“As to materiality, the substantive law will identify which facts are material.”).

In order to find that a “genuine” dispute exists, there must be a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict in favor of the non-moving party. Id. at 248, 106 S.Ct. 2505; see Pignataro v. Port Auth. of N.Y. and N.J., 593 F.3d 265, 268 (3d Cir.2010). All inferences must be drawn in the light most favorable to the nonmoving party. Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub.

Welfare, 402 F.3d 374, 379 (3d Cir.2005) (“We are required to review the record and draw inferences in a light most favorable to the nonmoving party ... yet the nonmoving party must provide admissible evidence containing ‘specific facts showing that there is a genuine issue for trial.’ ”) (quoting Fed.R.Civ.P. 56(e)). It is inappropriate at the

summary judgment stage for a court to resolve factual disputes or make credibility determinations, however, a court is not required “to turn a blind eye to the weight of the evidence.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (noting that the party opposing

summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts”) (internal citation omitted).

Summary judgment is appropriate where the non-moving party only presents evidence that is “colorable” or “not significantly probative.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; see Petruzzi’s IGA Supermarkets, Inc. v. Darling-Del. Co., Inc., 998 F.2d 1224, 1230 (3d Cir.1993) (recognizing that the 'non-moving party must provide more than a “mere scintilla” of evidence, but is not required to match each item of evidence relied upon by the moving party).

Upon a showing by the moving party that the claims of the non-moving party cannot be supported by the available evidence, the non-moving party must go beyond the allegations contained in the complaint and through the use of its “own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted). “Such affirmative evidence — regardless of whether it is direct or circumstantial — must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.” Saldana, 260 F.3d at 232 (quoting Williams v. Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir.1989)). B. Choice of Law Analysis It is beyond cavil that the conflict of laws rules of the forum state apply when a federal court exercises diversity jurisdiction. Kaneff v. Del.

Title Loans, Inc., 587 F.3d 616, 621 (3d Cir.2009) (internal citations omitted). Therefore, as this Court sits in Pennsylvania, it will apply Pennsylvania’s choice of law rules. Pennsylvania employs a two-step hybrid framework to choice of law questions. See Atl. Pier Assocs., LLC v. Boardakan Rest. Partners, 647 F.Supp.2d 474, 486-87 (E.D.Pa.2009) (discussing Pennsylvania’s approach to conflict of laws issue) (internal citation omitted). Under the first step of this analysis, the Court must determine whether a real conflict exists between the respective laws. Hammersmith v. TIG Ins.

Co., 480 F.3d 220, 230 (3d Cir. 2007). A real conflict exists only where the application of each state’s substantive law produces a contrary result. Id. If the same result would ensue under the laws of the forum state and those of the foreign jurisdiction, then no conflict exists, and the court may avoid the choice of law question altogether. Id.; see Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir.2006) (finding that where applying the laws of both jurisdictions would produce an identical result, a court should not engage in a choice of law analysis) (citing Williams v.

Stone, 109 F.3d 890, 893 (3d Cir.1997)). Where a conflict exists, a court must proceed to the second step of the conflict inquiry to determine whether the conflict is “true,” “false,” or “unprovided for.” Hammersmith, 480 F.3d at 230. A “true” conflict exists where both states have a cognizable interest in applying their own law. Id. A “false” conflict exists when only one state has an actual interest in applying its law. Id. The situation is “unprovided for” when neither state has an interest in applying its own law. Id. at n. 9.

Where a false conflict or “unprovided for” situation exists, the Court’s inquiry is at an end and the law of the forum applies. It is only necessary to proceed to a “deeper” choice of law analysis where a true conflict exists, i.e., the interests of both of the respective states would be impaired by application of the other’s law. Id. at 230 (citing Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854, 856 (1970) (emphasis in original)). Upon finding that a true conflict exists, the Court must then determine “which state has the greater interest in the application of its law.” Id. at 231.

This analysis consists of combining “the approaches of both [the] Restatement II (contacts establishing significant relationships) and ‘interest analysis’ (qualitative appraisal of the relevant States’ policies with respect to the controversy).’ ” Id. (citing Melville v. Am. Home Assurance Co., 584 F.2d 1306, 1311 (3d Cir.1978)). In the end, a court does not merely count the number of contacts between the forums and compare; rather the court must “weigh the contacts on a qualitative scale according to their relation to the policies and interests underlying the [particular] issue.” Id. (citing Shields v. Consol.

Rail Corp., 810 F.2d 397, 400 (3d Cir.1987)). Turning to the choice of law question before the Court, there are three potential forums whose law could control the instant dispute: South Africa, Pennsylvania, and Illinois. As the law of South Africa implicates considerations of international law unique to a separate sovereign, Federal Rule of Civil Procedure 44.1 must be addressed before proceeding to the conflict analysis. Rule 44.1 controls the application of foreign law in federal court.

It provides: A party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law. Fed.R.Civ.P. 44.1. While this rule empowers a district court with the authority to determine applicable foreign law, it imposes no obligation on the court to inquire into foreign law sua sponte. See Bel-Ray Co., Inc. v.

Chemrite Ltd., 181 F.3d 435, 440 (3d Cir.1999) (stating that Rule 44.1 “provides courts with broad authority to conduct them own independent research to determine foreign law but imposes no duty upon them to do so”); Integral Res. Ltd. v. Istil Group, Inc., 155 Fed.Appx. 69, 73 (3d Cir.2005) (non-precedential opinion) (finding that the district court was not required to consider the law of Pakistan sua sponte).

Under Rule 44.1, it is incumbent upon the parties to “carry both the burden of raising the issue that foreign law may apply in an action, and the burden of adequately proving foreign law to enable the court to apply it in a particular case.” Bel-Ray, 181 F.3d at 440 (citing Whirlpool Fin. Corp. v. Sevaitx, 96 F.3d 216, 221 (7th Cir.1996)). Therefore, where the parties do not satisfy both of these burdens, the law of the forum will apply.

See id. at 441 (finding that where a litigant failed to raise the issue of whether South African contract law applied and failed to provide any evidence as to the substance of that foreign law, it was appropriate to apply the law of the forum); Walter v. Neth. Mead N.V., 514 F.2d 1130, 1137 n. 14 (3d Cir. 1975) (concluding that although the law of the Netherlands ostensibly applied, where a party did not conclusively establish the foreign law, the court should assume it is consistent with the law of the forum).

Here, initially, neither party raised the issue of the applicability of South African law to Plaintiffs claims. Rather, both parties argued vigorously against application of South African law to the instant dispute. The Court, however, raised the issue to the parties at the hearing on

summary judgment and ordered additional briefing on the topic. The Court will accept these submissions as adequate in order to address the conflict of laws issue. Thus, the Court proceeds to apply Pennsylvania’s conflict of laws framework, which requires examination of the applicable law of the three forums. 1. Pennsylvania versus Illinois As a preliminary matter, the Court rejects Defendants’ argument that Illinois law controls due to the choice of law provision contained in Plaintiffs employment contract with the Foundation for two reasons.

One, the employment contract at issue was between the Foundation and Plaintiff, and neither Winfrey nor any other Defendant is a signatory to that agreement. Two, and more importantly, the tort claims alleged do not depend upon the existence of the employment agreement. In other words, these claims are not intertwined with the performance of the employment agreement itself, rather the claims rely upon extra-contractual events beyond the scope of the forum selection provision. See Coram Healthcare Corp. v. Aetna U.S.

Healthcare, Inc., 94 F.Supp.2d 589, 592 (E.D.Pa.1999) (finding that fraud and negligent misrepresentation claims were not covered by contractual choice of law provision); Nubenco Enters., Inc. v. Inversiones Barberena, S.A., 963 F.Supp. 353, 373 (D.N.J.1997) (defamation and misappropriation claims not covered by forum selection clause); Jiffy Lube Int’l, Inc. v. Jiffy Lube of Pa., Inc., 848 F.Supp. 569, 576 (E.D.Pa.1994); Brown v. SAP Am., No. 98-507, 1999 WL 803888, at *5 (D.Del. Sept. 13,1999). i.

Defamation With respect to the first step of the conflict of laws analysis, the Court finds that an actual conflict exists between the law of defamation in Pennsylvania and Illinois in light of the existence of the “innocent construction rule” recognized under Illinois law. The “innocent construction rule” provides that “even if a statement falls into one of the categories of words that are defamatory per se, it will not be actionable per se if it is reasonably capable of an innocent construction.” Tuite v. Corbitt, 224 Ill.2d 490, 310 Ill.Dee. 303, 866 N.E.2d 114, 121 (2006); see also Chapski v.

Copley Press, 92 Ill.2d 344, 65 IllDec. 884, 442 N.E.2d 195, 196-97 (1982). “Stated differently, ‘a statement reasonably capable of a nondefamatory

interpretation, given its verbal or literary context, should be so interpreted. There is no balancing of reasonable constructions Green v. Rogers, 234 Ill.2d 478, 334 Ill.Dec. 624, 917 N.E.2d 450, 463 (2009) (internal quotation marks and citation omitted). In contrast, under Pennsylvania law, no such innocent construction rule exists. See Dougherty v. Boyertoum Times, 377 Pa.Super. 462, 547 A.2d 778, 783 (1988) (noting that a statement capable of innocent meaning should be viewed as a jury question) (internal citation omitted); Gordon v. Lancaster Osteopathic Hosp. Ass’n, Inc., 340 Pa.Super. 253, 489 A.2d 1364, 1368 (1985) (“Even where a plausible innocent

interpretation of the communication exists, if there is an alternative defamatory

interpretation, the issue must proceed to the jury.”). Therefore, so long as the statement is capable of defamatory meaning, whether it was actually defamatory is a jury question. See Brophy v. Phila. Newspapers, Inc., 281 Pa.Super. 588, 422 A.2d 625, 628 (1980) (holding that the case must proceed past

summary judgment if the statement is capable of defamatory

interpretation). The Court further concludes that this difference represents an “actual” conflict in that both Illinois and Pennsylvania have an interest in applying their respective laws. Illinois adopted the “innocent construction rule” in order to afford a certain degree of protection for its speakers in areas of potentially defamatory communications. See Tuite, 310 Ill.Dec. 303, 866 N.E.2d at 122 (noting that the justification for the innocent construction rule springs from an interest in guarding the free speech of the speaker).

Pennsylvania, on the other hand, maintains an interest in safeguarding a person’s reputation from unjust harm. See Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pa., 592 Pa. 66, 923 A.2d 389, 395 (2007) (stating that “reputational interests occupy an elevated position within our state Constitution’s system of safeguards”). Due to the existence of this actual conflict, the Court must determine which state has a materially greater interest in application of its law.

This requires an examination of the relevant contacts of the respective forums and how those contacts relate to the States’ policies underlying the applicable laws. The Court looks to the Restatement (Second) of Conflicts for guidance in resolving this issue.

Defendants contend that Illinois has a greater interest in having its law apply because all Defendants are citizens of Illinois and the allegedly defamatory statements made during the November Press Conference were made by Winfrey in Chicago, and that these contacts are in keeping with Illinois’ asserted interest in protecting the free speech rights of its speakers.

In contrast, Plaintiff posits that Pennsylvania law should apply because Plaintiff was domiciled in Pennsylvania at the time of the defamatory communications and had a bona fide interest in her reputation in Pennsylvania, and that these contacts are consistent with Pennsylvania’s interest in affording the highest protection to the reputational interest of its citizens. An individual’s interest in her reputation has been described as a “valuable asset in one’s business or profession.” Fitzpatrick, v. Milky Way Prods., Inc., 537 F.Supp. 165, 171 (E.D.Pa.1982).

The purpose underlying defamation law is to compensate an individual for pecuniary harm to one’s reputation inflicted by a defamatory statement. See Wilson v. Slatalla, 970 F.Supp. 405, 414 (E.D.Pa.1997). Therefore, the majority of courts confronted with this choice of law question have found that the plaintiffs domicile should control since this is the forum with the greater interest. See Marcone v.

Penthouse Int'l Magazine for Men, 754 F.2d 1072 (3d Cir. 1985) (district court correctly applied Pennsylvania law because the plaintiff was a Pennsylvania resident and any harm to his reputation that may have occurred centered in that state); Franklin Prescriptions, Inc. v.

The New York Times Co., 267 F.Supp.2d 425, 432 (E.D.Pa.2003) (finding that because plaintiffs principal place of business, and by extension its reputational interest and business contacts, was in Pennsylvania, it was the forum with the most significant relationship to the defamation action); Wilson, 970 F.Supp. at 414 (holding that “the state of plaintiffs domicile generally has the greatest concern in vindicating plaintiffs good name and providing compensation for harm caused by defamatory publication”); Kraus Indus., Inc. v. Moore, No. 06-00542, 2007 WL 2744194, at *4 (W.D.Pa. Sept. 18, 2007); Keeshan v.

Home Depot, U.S.A., Inc., No. 00-529, 2001 WL 310601, at *14 (E.D.Pa. Mar. 27, 2001) (applying Pennsylvania law to defamation claim because plaintiff was a Pennsylvania resident and the defamatory remark was published in Pennsylvania); Osby v. A & E Television Networks and Kurtis Prods., Ltd., No. 96-7347, 1997 WL 338855, at *3 (E.D.Pa. Jan. 17, 1997) (citing Restatement (Second) of Conflict of Laws § 150(2)). This approach is consistent with the Restatement.

Under § 150(2) of the Restatement (Second) of Conflicts, “[w]hen a natural person claims that he has been defamed by an aggregate communication, the state of the most significant relationship will usually be the state where the person was domiciled at the time, if the matter complained of was published in that state.” Restatement (Second) of Conflicts of Law § 150(2). The parties dispute whether statements from the October Meeting were re-published outside of South Africa.

Defendants concede, however, that the statements from the November Press Conference were available on the internet, and therefore, were published throughout the United States, including Pennsylvania. Thus, if Plaintiff is found to have been domiciled in Pennsylvania during the operative time period, then the Restatement militates in favor of applying Pennsylvania law. The Court finds that Plaintiff was domiciled in Pennsylvania at the time the allegedly defamatory communications were published. Plaintiff lived in Pennsylvania from 2000 through 2006 while working at Germantown.

The Restatement provides that a person’s domicil is usually a person’s home. Id. § 11. The Restatement further defines one’s home as “the place where a person dwells and which is the center of his domestic, social and civic life.” Id. § 12. Moreover, the Restatement provides that in order “[t]o acquire a domicil of choice in a place, a person must intend to make that place his home for the time at least.” Id. § 18.

The evidence presented indicates that during Plaintiffs time working at Germantown she treated Pennsylvania as her home (as defined by the Restatement) and intended to remain in Pennsylvania until the opportunity at OWLAG materialized in 2006. Moreover, as of October 8, 2007, when Plaintiff was placed on administrative leave, she remained in the United States and resumed living in Pennsylvania prior to the time that the October Meeting and the November Press Conference occurred.

Furthermore, the fact that Plaintiff maintained a residence in South Africa while working at OWLAG does not undermine the conclusion that Plaintiffs domicile is Pennsylvania. According to the Restatement, a person has no more than one domicil at a time, id. § 11, and a person retains the same domicil until it is superseded by a new domicil. Id. § 19.

While Plaintiffs employment agreement with OWLAG provided that she would maintain a residence on the OWLAG campus during the school year, the agreement clearly contemplates that Plaintiff would remain domiciled in Pennsylvania and would travel to OWLAG in connection with her position as Headmistress. For instance, the employment agreement provides that Plaintiff would receive paid accommodations for air travel “for four (4) trips per year to South Africa, one trip per calendar per quarter.” (Defs.’ Mot. Summ. J. Ex.

D-15, ¶3.4.) Furthermore, the employment agreement provides that “[t]he Head of Academy will be based in Philadelphia, Pennsylvania with extensive travel anticipated to the Academy’s location at Henley on Klip, South Africa.” (Id. ¶ 4.1.) Thus, it is clear that by accepting the position at OWLAG, Plaintiff was in no sense renouncing her domicile in Pennsylvania.

Defendants argue that Plaintiff was not domiciled in Pennsylvania because domicil requires an intent to permanently reside in a particular forum, and since Plaintiff traveled to the United States on a visa, her domicil never changed from Kenya, her country of origin. This argument is not persuasive. It is true that courts have recognized that a visa prevents an immigrant from establishing a legal domicil in the United States under certain circumstances. See Graham v.

I.N.S., 998 F.2d 194, 196 (3d Cir.1993) (finding that an alien could not establish domicil for purposes of a deportation statute because the legal definition of the term “domicil” necessitates an intent to remain in a forum indefinitely, which conflicted with a temporary worker visa’s requirement that the holder have a foreign residence that he does not intend to abandon). As explained above, however, domicil for purposes of conducting a choice of law analysis under the Restatement requires only that an individual intend to reside in a particular forum for the foreseeable future. See Restatement 2d. § 18.

The Court concludes that because Plaintiff was domiciled in Pennsylvania at the time the allegedly defamatory statements were published, Pennsylvania has a greater interest than Illinois in the instant dispute. Therefore, the substantive law of Pennsylvania shall apply with respect to Plaintiffs defamation claim. ii. False Light In response to the Court’s directive that the parties brief the conflict of laws issue, neither party addressed any conflict with respect to Pennsylvania or Illinois law on the tort of false light invasion of privacy.

As neither party has cited to a potential conflict between these two forums, and the Court sua sponte has determined that the basic elements required under both Pennsylvania law and Illinois law are identical, the Court finds that no conflict exists and the law of the forum controls. See Lucker Mfg. v. Home Ins.

Co., 23 F.3d 808, 813 (3d Cir.1994) (avoiding choice of law question where neither party pressed the issue and there was no apparent conflict between the laws of the forums) (citing Melville, 584 F.2d at 1311 (warning courts to avoid dicta on conflicts questions when not put in issue by the parties)). iii. Intentional Infliction of Emotional Distress As is the case with Plaintiffs false light claim, the parties have not addressed any conflict issue between the laws of Pennsylvania and Illinois with respect to Plaintiffs claim for intentional infliction of emotional distress.

Therefore, the Court will proceed on the basis that no conflict exists and apply the law of the forum to this claim. See id. 2. Pennsylvania versus South Africa In order to complete the choice of law analysis, the Court must compare the laws of South Africa and Pennsylvania to determine whether any actual conflict exists, and if so, whether South Africa has a more significant interest in having its law apply to these proceedings. i. Defamation With respect to the first step of the choice of law analysis, Pennsylvania and South Africa law conflict as to the burden of proving the falsity of a defamatory statement.

Under South African law, “a defendant [must] establish, once a plaintiff has proved the publication of a defamatory statement affecting the plaintiff, that the publication was lawful because the contents of the statement were true and in the public benefit.” Khumalo & Others v. Holomisa, 2002(1) SA 401(CC) at 29 (S.Afr.). In other words, “[t]he burden of proving truth thus falls on the defendant.” Id. at 29-30. This is incompatible with the controlling law in Pennsylvania that a plaintiff must prove falsity with respect to matters of public concern. See Am.

Future Sys., 923 A.2d at 396 n. 8 (Pa.2007) (citing Phila. Newspapers v. Hepps, 475 U.S. 767, 775,106 S.Ct. 1558, 89 L.Ed.2d 783 (1986)); Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038, 1041 (1996) (“[I]t is the burden of a public figure plaintiff ... to show that the statements at issue are false.”) (internal citation omitted). The Court concludes that this difference represents a true conflict. As previously stated, a true conflict exists “when the governmental interests of both jurisdictions would be impaired if their law were not applied.” Lacey v.

Cessna Aircraft Co., 932 F.2d 170, 187 n. 15 (3d Cir.1991) (emphasis in original). In assigning the burden of proof of falsity to a defendant, the Constitutional Court of South Africa balanced the interests involved in defamation between protection of an individual’s reputation, which the Court expressed as equivalent with the value of human dignity, with the right to free expression. Khmnalo, 2002(1) SA 401(CC) at 25. The court explained: The law of defamation seeks to protect the legitimate interest individuals have in their reputation.

To this end, therefore, it is one of the aspects of our law which supports the protection of the value of human dignity. When considering the constitutionality of the law of defamation, therefore, we need to ask whether an appropriate balance is struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other. Id.

Likewise, the requirement that the plaintiff prove falsity under Pennsylvania law represents a balancing of the interests of the right to protect a reputational interest with the need to foster public debate on certain issues while coming to a very different conclusion. See Hepps, 475 U.S. at 777-78, 106 S.Ct. 1558. Therefore, as application of either law would impair the carefully crafted balancing of interests between the respective forums, it is clear that an actual conflict exists.

Proceeding to the next step in the conflict analysis, the Court finds that Pennsylvania exhibits a more significant interest in having its law on defamation apply to the instant dispute. As explained above, Pennsylvania obviously has a substantial interest in this litigation as Plaintiff was domiciled in Pennsylvania at the time the allegedly defamatory communications were published and had a reputational interest to protect in that forum. South Africa, in contrast, does not have a material interest in having its law apply to Plaintiffs defamation claims.

It is true that the allegedly defamatory statements made at the October Meeting were published only in South Africa and that the events giving rise to the allegedly defamatory statements occurred in South Africa. Under Pennsylvania’s choice of law analysis, however, these contacts must be examined in light of the underlying purpose of defamation law, which is to compensate an individual for injury to her reputation.

Viewed in this context, it is clear that Plaintiff maintained a much stronger reputational interest in Pennsylvania than South Africa, and therefore, Pennsylvania has a stronger interest in having its law apply on this issue. ii. False Light As explained above, Rule 44.1 of the Federal Rules of Civil Procedure directs that the litigants bear the burdens of establishing foreign law and demonstrating that it differs from United States law. See Fed.R.Civ.P. 44.1; Bel-Ray, 181 F.3d at 440.

Where the parties fail to carry these burdens, the Court is empowered to presume that the foreign law is the same as that of the United States, and need not engage in a choice of law analysis. See Ferrostaal, Inc. v. M/V Sea Phoenix, 447 F.3d 212, 218 (3d Cir.2006) (refusing to engage in conflict of laws analysis where the parties did not satisfy the necessary predicate of establishing Tunisian law pursuant to Fed.R.Civ.P. 44.1). As neither party provided any authority as to the tort of false light invasion of privacy under South African law, the Court concludes that Rule 44.1 has not been satisfied.

Therefore a choice of law analysis is unnecessary and Pennsylvania law will apply. iii. Intentional Infliction of Emotional Distress As with the tort of false light, the parties have failed to satisfy their burden of conclusively establishing South African law under Rule 44.1 with respect to the cause of action for intentional infliction of emotional distress. Therefore, the Court declines to address the choice of law question and Pennsylvania law will control. See id. 3.

Pennsylvania Law is Consistent with Due Process After resolving the choice of law issue and selecting the appropriate forum’s law to be applied, the Court is required to ensure that application of this law passes constitutional muster. “[F]or a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.” Allstate Ins. Co. v.

Hague, 449 U.S. 302, 312-13, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981); see Budget Rent-A-Car Sys., Inc. v. Chappell, 407 F.3d 166, 175 (3d Cir. 2005); Powers v. Lycoming Engines, 328 Fed.Appx. 121, 125 (3d Cir.2009) (nonprecedential opinion) (noting that once the choice of law is made, a court is required to consider whether applying that law violates due process). Defendants contend that application of Pennsylvania law is constitutionally impermissible under Hague because the only connection to Pennsylvania is Plaintiffs “nominal residence” there. This argument is unavailing.

As explained above, Plaintiff was domiciled in Pennsylvania for the relevant period of time for purposes of this lawsuit, and Plaintiffs domicil is not an insignificant contact for purposes of applying Pennsylvania law. In contrast, Plaintiff being domiciled in Pennsylvania creates a significant state interest for Pennsylvania in providing redress for injury to Plaintiffs reputational interest.

Furthermore, as Defendants were plainly aware that Plaintiff was domiciled in Pennsylvania, and would remain so throughout the course of her employment with OWLAG (as demonstrated by the provisions of her employment contract cited above), Defendants cannot establish that application of Pennsylvania law is somehow “arbitrary or fundamentally unfair” under Hague. Therefore, the Court concludes that application of Pennsylvania law comports with the constitutional requirements of due process. C.

Defamation Analysis The Third Circuit has emphasized the interplay between state and federal law in a defamation case, noting that “[a]l-though a defamation suit has profound First Amendment implications, it is fundamentally a state cause of action.” Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir. 2001) (quoting McDowell v. Paiewonsky, 769 F.2d 942, 945 (3d Cir.1985)). Under Third Circuit jurisprudence, the Court must apply a two-step approach when presiding over a defamation action.

The Court must determine: “ ‘(1) whether the defendants have harmed the plaintiffs reputation within the meaning of state law; and (2) if so, whether the First Amendment nevertheless precludes recovery.’ ” Marcone, 754 F.2d at 1077 (quoting Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir.1980)).

Under this framework, it is only necessary to consider the extent to which the First Amendment shields Defendants from liability if the Court concludes that Plaintiff has adduced sufficient evidence to show that triable issues exist with respect to whether the allegedly defamatory statements are capable of supporting a defamation claim under Pennsylvania law. See Tucker, 237 F.3d at 281; Nanavati v. Burdette Tomlin Mem’l Hosp., 857 F.2d 96, 106 n. 11 (3d Cir.1988) (“[W]e first must consider whether New Jersey would allow a defamation action under the circumstances of this case.

If we believe that New Jersey would recognize a defamation action, then we may examine whether constitutional protections nevertheless would defeat that action.”). 1. Pennsylvania Defamation Law “Defamation, of which libel, slander, and invasion of privacy are methods, is the tort of detracting from a person’s reputation, or injuring a person’s character, fame, or reputation, by false and malicious statements.” Joseph v. Scranton Times L.P., 959 A.2d 322, 334 (Pa.Super.Ct.2008) (citing Zartman v. Lehigh County Humane Soc’y, 333 Pa.Super. 245, 482 A.2d 266, 268 (1984)).

The elements of Pennsylvania defamation law are defined by statute. In order to successfully establish a claim for defamation a plaintiff has the burden of proving:

(1) The defamatory character of the communication.

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its defamatory meaning.

(5) The understanding by the recipient of it as intended to be applied to the plaintiff.

(6) Special harm resulting to the plaintiff from its publication.

(7) Abuse of a conditionally privileged occasion. 42 Pa.C.S. § 8343(a). Once a plaintiff establishes these elements, the defendant has the burden of proving the following, when relevant to the claim:

(1) The truth of the defamatory communication.

(2) The privileged character of the occasion on which it was published.

(3) The character of the subject matter of defamatory comment as of public concern. Id. § 8343(b). A statement is deemed to be defamatory “if it tends to blacken a person’s reputation or expose him to public hatred, contempt, or ridicule, or injure him in his business or profession.” Joseph, 959 A.2d at 334 (citing MacElree v. Phila.

Newspapers, Inc., 544 Pa. 117, 674 A.2d 1050, 1054 (1996)). “When communications tend to lower a person in the estimation of the community, deter third persons from associating with him, or adversely affect his fitness for the proper conduct of his lawful business or profession, they are deemed defamatory.” Id. (quoting Green v. Mizner, 692 A.2d 169, 172 (Pa.Super.Ct.1997)). “It is not enough that the victim of the [statements] ... be embarrassed or annoyed, he must have suffered the kind of harm which has grievously fractured his standing in the community of respectable society.” Tucker v. Phila.

Daily Netos, 577 Pa. 598, 848 A.2d 113, 124 (2004) (quoting Scott-Taylor, Inc. v. Stokes, 425 Pa. 426, 229 A.2d 733, 734 (1967)). Importantly, only statements of fact, rather than mere expressions of opinion, are actionable under Pennsylvania law. Moore v. Cobb-Nettleton, 889 A.2d 1262, 1267 (Pa.Super.Ct.2005) (citing Elia v. Erie Ins. Exch., 430 Pa.Super. 384, 634 A.2d 657, 660 (1993)). In order for an “opinion” to be deemed capable of defamatory meaning under Pennsylvania law, it must “reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion.” Remick v.

Manfredy, 238 F.3d 248, 261 (3d Cir.2001) (internal citation omitted). The statements alleged to be defamatory must be viewed in context. Baker v. Lafayette Coll, 516 Pa. 291, 532 A.2d 399, 402 (1987). The Pennsylvania Supreme Court has explained that: [W]ords which standing alone may reasonably be understood as defamatory may be so explained or qualified by their context as to make such an

interpretation unreasonable. Thus, we must consider the full context of the

article to determine the effect the

article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. Thomas Merton Ctr. v. Rockwell Int’l Corp., 497 Pa. 460, 442 A.2d 213, 216 (1981). Pennsylvania courts recognize that a claim for defamation may exist where the words utilized themselves are not defamatory in nature, however, the context in which these statements are issued creates a defamatory implication, i.e., defamation by innuendo. Accord Thomas Merton, 442 A.2d at 217; Bogash v. Elkins, 405 Pa. 437,176 A.2d 677, 679 (1962); Sarkees v. Warner-W.

Corp., 349 Pa. 365, 37 A.2d 544, 546 (1944) (all discussing defamation by innuendo).

The Pennsylvania Supreme Court has expounded upon the concept of defamation by innuendo as follows: The purpose of an innuendo, as is well understood, is to define the defamatory meaning which the plaintiff attaches to the words; to show how they come to have that meaning and how they relate to the plaintiffi.] But it cannot be used to introduce new matter, or to enlarge the natural meaning of the words, and thereby give to the language a construction which it will not bear[.] It is the duty of the court in all cases to determine whether the language used in the objectionable

article could fairly and reasonably be construed to have the meaning imputed in the innuendo. If the words are not susceptible of the meaning ascribed to them by the plaintiff and do not sustain the innuendo, the case should not be sent to a jury.... [Consequently,] [i]f the publication complained of is not in fact libelous, it cannot be made so by an innuendo which puts an unfair and forced construction on the

interpretation of the publication. Sarkees, 37 A.2d at 546 (internal quotation marks and citations omitted). In order to succeed on such a claim, the “innuendo must be warranted, justified and supported by the publication.” Livingston v. Murray, 417 Pa.Super. 202, 612 A.2d 443, 449 (1992) (quoting Thomas Merton, 442 A.2d at 217). Similarly, the Superior Court of Pennsylvania has recognized that “the literal accuracy of separate statements will not render a communication ‘true’ where ... the implication of the communication as a whole was false.” Dunlap v. Phila.

Newspapers, Inc., 301 Pa.Super. 475, 448 A.2d 6, 15 (1982). Although the Pennsylvania Supreme Court has never addressed this theory of defamation-by-implication, courts applying Pennsylvania law have found that even where the complained-of statements are literally true, if, when viewed in toto, the accurate statements create a false implication, the speaker may be liable for creating a defamatory implication. See Allied Med. Assocs. v. State Farm Mut. Auto. Ins. Co., No. 08-02434, 2008 WL 4771850, at *4 n. 3 (E.D.Pa.

Oct. 30, 2008) (finding that defamation by implication is a cognizable legal theory under Pennsylvania law); Franklin Prescriptions, 267 F.Supp.2d at 434-35 (applying Pennsylvania law and concluding that an

article was actionable where certain information was omitted which resulted in a defamatory implication that the plaintiff was involved in the unlawful sale of prescription drugs); Fanelle v. Lojack Corp., No. 99^4292, 2000 WL 1801270, at *2-3 (E.D.Pa. Dec. 7, 2000) (concluding that a claim for defamation-by-implication is viable under Pennsylvania law and finding that a promotional package issued by a vehicle theft detection company that included an undisputedly true

article documenting plaintiffs arrest for vehicle theft charges was capable of defamatory meaning because taken as a whole it created the implication that the plaintiff was a thief). 2. Analysis under Pennsylvania Law Based on the legal framework set forth above, the Court will rigorously examine the statements made during the October Meeting and the November Press Conference to determine whether the allegedly defamatory communications are actionable under Pennsylvania law. Defendants do not contest that the publication element is present with respect to each of the statements in this case. Thus, a determination of Defendants’ motion for

summary judgment on Plaintiffs defamation claim can be distilled to the following questions: (1) whether the statements are capable of defamatory meaning under Pennsylvania law; and (2) whether the statements are “of or concerning” Plaintiff. i. Capable of Defamatory Meaning Whether the statements at issue are capable of defamatory meaning is a question of law to be decided by the Court. Blackwell v. Eskin, 916 A.2d 1123, 1125 (Pa.Super.Ct.2007) (citing Tucker, 848 A.2d at 124). In making this legal determination, the Court must view the statement in the factual context in which it was made.

See Baker, 532 A.2d at 402; Agency Sews., Inc. v. Reiter, 513 F.Supp. 586, 587-88 (E.D.Pa.1981) (in assessing whether statements are capable of defamatory meaning “a court must weigh both the language of the communication, and the context in which the communication is made”) (citing Pierce v. Capital Cities Comm’ns, Inc., 576 F.2d 495, 502 (3d Cir. 1978)). The touchstone in determining whether a statement is capable of defamatory meaning is how the statement would be interpreted by the average person to whom it was directed. See Marier v. Lance, Inc., No. 07-4284, — Fed.Appx. -,-, 2009 WL 297713, at *3 (3d Cir.

Feb. 9, 2009) (“In analyzing whether or not a statement is defamatory, Pennsylvania courts have held that “[t]he nature of the audience seeing or hearing the remarks is ... a critical factor in determining whether the communication is capable of a defamatory meaning.” ”) (internal citation omitted); Green, 692 A.2d at 172 (stating that an assessment of whether a statement is defamatory requires the court to “consider the effect of the entire

article and the impression it would engender in the minds of the average reader among whom it is circulated”); see also Fischbein, 237 F.3d at 283 (reviewing statements in order to determine “the impression that they were likely to engender in the minds of the average reader”); St. Surin v. V.I. Daily News, Inc., 21 F.3d 1309, 1317 (3d Cir. 1994) (“In defamation actions, words should be construed as they would be understood by the average reader.”) (internal citation omitted).

For example, a court should consider the nature of the readership of a publication in determining whether a statement contained therein is capable of defamatory meaning. See, e.g., Sellers v. Time, Inc., 423 F.2d 887, 890-91 (3d Cir.1970) (applying Pennsylvania law and considering the level of sophistication when compared with the average reader in determining whether an

article is capable of defamatory meaning); Sprague v. Am. Bar Ass’n, No. 01-382, 2001 WL 1450606, at *2 (E.D.Pa. Nov. 14, 2001) (Yohn, J.) (considering the average reader of the ABA Journal in determining whether the term “fixer” was capable of defamatory meaning). “If the court deems a statement capable of defamatory meaning, the jury must determine if recipients of the communication have understood it to be defamatory.” Wilson, 970 F.Supp. at 415 (internal citations omitted). ii.

Of and Concerning Plaintiff Under Pennsylvania’s defamation statute, a plaintiff must demonstrate that the complained-of statement applies to her, i.e., whether it is “of and concerning” her. See 42 Pa.C.S. § 8343(a)(3), (5). In determining whether Plaintiff has satisfied this burden, the test to be applied is whether the “defamatory communication may reasonably be understood as referring to the plaintiff.” Zerpol Corp. v. DMP Corp., 561 F.Supp. 404, 410 (E.D.Pa.1983) (citing Farrell v.

Triangle Publ’ns, Inc., 399 Pa. 102, 159 A.2d 734 (I960)). “It is not enough that plaintiff understands the communication to be about him.” Id. It is true, however, that under Pennsylvania law, “a defamed party need not be specifically named in a defamatory statement in order to recover, if she is pointed to by description or circumstances tending to identify her.” Weinstein v. Bullick, 827 F.Supp. 1193, 1199 (E.D.Pa.1993) (citing Redco Corp. v. CBS, Inc., 758 F.2d 970, 972 (3d Cir.1985); Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751, 753 (1962)). At the

summary judgment stage, in a case where the plaintiff is not identified by name, the court must find that a recipient could reasonably conclude that the publication refers to the plaintiff. Weinstein, 827 F.Supp. at 1199 (citing Farrell, 159 A.2d at 739). The Court will address these two questions and bifurcate the allegedly defamatory statements into two categories for purposes of

summary judgment (1) actionable statements, and (2) non-actionable statements. iii. Specific Statements at Issue Plaintiff has identified certain statements by Winfrey from the October Meeting and the November Press Conference which she claims are capable of defamatory meaning. In Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971), abrogated on other grounds as recognized by Dunlap, 448 A.2d at 13, a leading Pennsylvania case on defamation, the Pennsylvania Supreme Court articulated the procedure for determining whether allegedly defamatory statements are to be presented to the jury.

It is the function of the Court to determine whether the statements relied upon by Plaintiff are capable of defamatory meaning. To put it another way, under Pennsylvania law, the Court acts as a gatekeeper to determine whether the statements are incapable of defamatory meaning in deciding whether any basis exists to proceed to trial. See Tucker, 848 A.2d at 123-24 (citing Thomas Merton, 442 A.2d at 215-16). In accordance with Cora-bi, the Court will examine the passages relied on by Plaintiff individually but will consider their meaning in light of the surrounding context in which each statement was made.

Id. at 905-06. The statements made during the October Meeting and the November Press Conference are addressed in turn. a. October Meeting

(1) Actionable Statements

(1) And I said to the girls that any person that has caused harm to any of them will no longer be allowed to work at this school. And thus far, we have removed all of the dorm parents. I’ve spoken to [Plaintiff] o/nd I said to [Plaintiff! that I don’t know what she knows because the investigation is continuing. I don’t know what she knows, or knew, or didn’t know, but that I have lost confidence in her ability to run this school. And therefore, she will not be returning to this school. When viewed in context, these statements are capable of defamatory meaning.

The average listener could interpret Winfrey’s statement that she has “lost confidence” in Plaintiffs abilities, in conjunction with the preceding statement that “any person that has caused harm” to the students would not be returning to OWLAG, to mean that Plaintiff was not being retained due to the fact that she played some role in the “harm” caused to the students. Further, Winfrey’s statement that she is uncertain what Plaintiff “knows, or knew, or didn’t know” does not negate the implication that Plaintiff was aware of the misconduct by the Dorm Parents.

The implication that Plaintiff was aware of abuse by the Dorm Parents and did not react accordingly is capable of defamatory meaning as it ascribes conduct which would render her unfit for her profession as an educator. See Maier v.

Maretti, 448 Pa.Super. 276, 671 A.2d 701, 704 (1995) (“A communication is also defamatory if it ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession.”) (citation omitted), see, e.g., Dougherty, 547 A.2d at 783 (letter from a former patient which impugned the professional competence of a chiropractor based upon the quality of the treatments provided was capable of defamatory meaning).

Defendants contend that Winfrey’s statement that she “lost confidence” in Plaintiffs ability represents a statement of opinion, which, if so, is non-actionable. The benchmark for determining whether a statement of opinion is capable of defamatory meaning is whether the opinion “may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion.” Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571, 575 (1986) (quoting Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583, 587 (1980)); see generally Milkovich v.

Lorain Journal Co., 497 U.S. 1, 18, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (recognizing that “expressions of ‘opinion’ may often imply an assertion of objective fact”). The importance of the distinction between an opinion which discloses its underlying facts and one that implies the existence of undisclosed facts was explained by the Third Circuit in the Redco decision: Although there may be no such thing as a false opinion, an opinion which is unfounded reveals its lack of merit when the opinion-holder discloses the factual basis for the idea.

If the disclosed facts are true and the opinion is defamatory, a listener may choose to accept or reject it on the basis of an independent evaluation of the facts. However, if an opinion is stated in a manner that implies that it draws upon unstated facts for its basis, the listener is unable to make an evaluation of the soundness of the opinion. 758 F.2d at 972. Whether a statement qualifies as a true opinion or an “opinion” which implies the existence of undisclosed derogatory facts is a question of law to be resolved by the Court. See Green, 692 A.2d at 174 (citing Mathias v.

Carpenter, 402 Pa.Super. 358, 587 A.2d 1, 2-3 (1991)); Elia, 634 A.2d at 660 (citing Braig v. Field Comm’ns, 310 Pa.Super. 569, 456 A.2d 1366,1372-73 (1983)). Winfrey did not disclose the underlying facts which supported her opinion that she did not have confidence in Plaintiffs ability to serve as Headmistress. Without the disclosure of these underlying facts, this “opinion” implies that Winfrey’s judgment is based, at least in part, on Winfrey’s knowledge arising from the internal investigation at OWLAG. Cf.

Redco, 758 F.2d at 972 (finding opinion disclosing underlying facts not defamatory because “a listener may choose to accept or reject [the opinion] on the basis of an independent evaluation of the facts”); Parano v.

O’Con- nor, 433 Pa.Super. 570, 641 A.2d 607 (1994) (finding that defamatory comments that appellant was “adversarial, less than helpful, and uncooperative” incapable of defamatory meaning because they were subjective opinions based on disclosed facts); Baker, 532 A.2d at 402 (finding that a letter written by dean regarding an art professor’s performance was not defamatory where it was expressed conclusions based upon an investigation of the art department and actually disclosed the facts gleaned from the investigation underlying the eomplained-of statements).

Furthermore, the criticism of Plaintiffs job performance emanating from Winfrey, when received by the average listener, implies the existence of some undisclosed facts since it is reasonable to presume that Winfrey, as Plaintiffs superior, would be knowledgeable as to the substance of Plaintiffs job performance. See Roffman v. Trump, 754 F.Supp. 411, 419 (E.D.Pa. 1990) (denying

summary judgment and finding that disparaging comments as to investment analyst’s job performance were capable of defamatory meaning since “there can be little doubt that a person who hears someone criticizing another’s job performance would presume that the person doling out the disparaging comments possessed knowledge of some facts on which to base the criticism”); Ramsey v. AT & T Corp., No. 97-1301, 1997 WL 560183, at *6 (E.D.Pa.

Aug. 27, 1997) (finding that statements made by human relations director were capable of defamatory meaning since an average recipient could infer that the assessment of the plaintiffs work performance was based on undisclosed information). Therefore, in light of the fact that Winfrey’s statements imply the existence of facts indicating some level of Plaintiffs knowledge and/or involvement in the abuse allegations, these statements do not qualify as non-actionable opinion.

These statements explicitly identify Plaintiff and concern Winfrey’s conclusion that she has “lost confidence” in Plaintiffs competence as Headmistress. These statements unquestionably are “of and concerning” Plaintiff. The Court concludes that

summary judgment should not be granted with respect to the above-statements. (2) 15 girls had come to [Samuel’s] office to say that there was a problem at the school, that ... he was their last resort. They said that they had tried to tell [Plaintiff], the head of school, and that she had not taken them seriously, that on one occasion I learned that a group of girls had written [Plaintiff] a letter to complain about one dorm parent, specifically one dorm parent.

And instead of removing that dorm parent, or chastising that dorm parent, or suspending that dorm parent, apparently [Plaintiff] spoke to the dorm parent, told the dorm parent about the letter the girls had written to her and then that dorm parent went back and raided the dorm and forced all the girls to say who had written the letter. With respect to the issue of whether these statements are capable of defamatory meaning, Plaintiff contends that the statement that she did not take the complaints of the students “seriously” amounts to an allegation that she ignored the complaints of abuse.

Defendants respond that Winfrey’s characterization that Plaintiff did not take the students’ complaints “seriously” constitutes a non-actionable expression of opinion. When viewed in context, the implication that Plaintiff did not take complaints of mistreatment by the Dorm Parents “seriously” is capable of defamatory meaning because it connotes that Plaintiff failed in her role as an educational administrator to respond effectively to the students’ allegations of abuse. See Maier, 671 A.2d at 704.

This implication is supported by the fact that 15 students whom Plaintiff did not take “seriously” sparked the controversy at OWLAG by alerting Samuel to instances of abuse. The Court rejects Defendants’ argument that this statement amounts only to a non-actionable opinion. Winfrey failed to disclose any of the underlying facts demonstrating that Plaintiff did not take the complaints “seriously,” and in light of the ongoing internal investigation, this statement hints at the existence of undisclosed facts that Plaintiff did not respond appropriately to the students’ complaints.

Therefore, the Court concludes that this statement is a non-opinion that is capable of defamatory meaning. As to the question of whether these statements are “of and concerning” Plaintiff, the statements clearly reflect that the complaints were presented to Plaintiff herself and the substance of the statements concern Plaintiffs reaction to these complaints. Thus, this question is answered in the affirmative. Therefore,

summary judgment is inappropriate with respect to these statements.

(3) What happened here with the leadership is that the parents were shut out, the children were shut out, the teachers were shut out, and only-the only authority came from the dorm parents. The dorm parents were allowed to rule and given power over the girls. I cant’ I can’t 1 can’t even explain how that could happen. I don’t know hoiv it happened. I spoke to [Plaintiff] the other day and I told her that I didn’t think that it would be wise for her to continue at the school. I said, but just please tell me this one thing. How is it that these dorm parents toere given such power and authority over the girls?

With no checks and balances? Nobody to check on them. And she said you don’t understand. There were checks and balances. And I don’t see where they were. A fair reading of these statements is that Plaintiff bore responsibility for allowing the Dorm Parents to “rule” and exercise uncurbed authority over the OW-LAG students. Winfrey’s statements could be interpreted by the average listener to imply that Plaintiff failed in her obligation to “check” the authority of the Dorm Parents and guard against mistreatment of the students.

A charge that Plaintiff failed to prevent the Dorm Parents from exercising unabridged “power” over the students, in light of the backdrop of the abusive treatment by the Dorm Parents, impugns Plaintiffs prowess as a responsible educational professional.

See MacElree, 674 A.2d at 1054 (finding that a statement that a district attorney was “electioneering and was the David Duke of Chester County,” could lead a reasonable person to conclude that this was an accusation of abuse of the power as district attorney, an accusation that amounted to a charge of misconduct in office and thus capable of defamatory meaning as a matter of law).

Defendants’ position is that Winfrey’s statements that the teachers and parents were “shut out,” that the Dorm Parents were “allowed to rule” and that no “checks and balances” existed constituted merely non-actionable statements of disagreement of opinion. The Court rejects this position. Winfrey discloses no facts in support of any of these conclusions, particularly that Plaintiff failed to institute “checks” on the authority of the Dorm Parents.

Absent such disclosure, these “opinions” imply the existence of undisclosed derogatory facts, particularly in light of the internal investigation, that Plaintiff failed in her duty to monitor against misuse of power by the Dorm Parents. As to the question of whether these statements are “of and concerning” Plaintiff, they clearly reference Plaintiff directly by name and relate to Winfrey confronting her about the lack of “checks and balances” with respect to the authority of the Dorm Parents over the students.

Furthermore, Winfrey references the “leadership” at OWLAG as being responsible for allowing the Dorm Parents to exercise unchecked authority. Plaintiffs position is that the term “leadership” would be understood as referring to her based on her position as Headmistress.

The Third Circuit has recognized that an individual may assert a defamation claim as a group according to the following guidelines: Individual group members may sue based upon statements about a group when the statements were directed toward a comparatively small class or group all of whose constituent members may be readily identified and the recipients of the [statements] are likely to identify some, if not all, of them as intended objects of the defamation.

But no claim arises from a defamatory remark directed toward a group whose membership is so numerous that no individual member can reasonably be deemed its intended object. Similarly, no claim exists if, for any other reason, a reader could not reasonably conclude that the statements at issue referred to the particular person or persons alleging defamation. Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1015 (3d Cir.1994) (internal quotation marks and citations omitted). Here, the term “leadership” relates to a readily identifiable group of individuals at OWLAG, of which Plaintiff would be a member.

Therefore, this “of and concerning” requirement has been satisfied for purposes of

summary judgment. As the Court concludes that both of the above questions are answered in the affirmative, the Court will deny Defendants’ motion for

summary judgment with respect to these statements.

(4) The teachers felt shut out. The teachers were not allowed to participate in activities where the dorm parents were involved in. The teachers weren’t allowed-the way the system was supposed to work is that the nurses were over the dorm parents, but the nurses were then not allowed to say anything to the do'rm parents. So the dorm parents were completely empowered to do what they want, and whenever they wanted to do it, and um, thought that they were protected by [Plaintiff!. And your girls will tell you as they told me that they said there is nothing you can do to us.

There is nothing you can do to us because we’re protected by [Plaintiff!. With respect to the issue of whether these statements are capable of defamatory meaning, Plaintiff contends that the innuendo created by these statements is that Plaintiff empowered the Dorm Parents to mistreat the students. Winfrey recites that the students were told by the Dorm Parents that Plaintiff would protect the Dorm Parents against any complaints of abuse. Even if this statement was literally true it creates an implication in that the Dorm Parents believed they were “protected” by Plaintiff. See Dunlap, 448 A.

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