A former employee of plaintiff School of Visual Arts (“SVA”), allegedly posted false job listings on the website Craigslist.com, stating that SVA was seeking applications for the position of its human resources director. That position was in fact held by plaintiff Laurie Pearlberg, and was not vacant. The former employee also allegedly sent an e-mail to SVA’s human resources department containing a similar job listing for Pearlberg’s position, formatted to appear as it were posted at Monster.com, a legitimate website for employment listings. In addition, the former employee provided Pearlberg’s SVA e-mail address to various pornographic websites, which resulted in Pearlberg’s receipt of large volumes of unwanted sexually explicit e-mails. SVA and Pearlberg filed suit against the former employee, claiming trespass to chattels, defamation and trade libel, false designation of origin and dilution under the Lanham Act, violation of the N.Y. Civil Rights Law, and intentional interference with prospective economic advantage. The former employee moved to dismiss the claims. The Court sustained plaintiffs’ trespass to chattels claim, on the grounds that the former employee caused large volumes of unsolicited job applications and pornographic e-mails to be sent to SVA and Pearlberg by way of SVA’s computer system without consent, and these unsolicited e-mails depleted hard disk space, drained processing power and adversely affected other system resources on SVA’s computer system. The court emphasized that its decision to sustain the claim was not based upon the content of the e-mails.
However, the court granted the former employee’s motion to dismiss the defamation and trade libel claims. Pearlberg argued that the job postings constituted defamation because they were false statements to the public that SVA was seeking to replace her in her position as human resources director. The court, however, concluded that the simple statement that Pearlberg’s position was vacant cannot be reasonably construed as imputing professional unfitness or incompetence to Pearlberg, and thus did not constitute defamation. In addition, the court found that even if one were to read the job postings as implying that Pearlberg was terminated, the postings would still not be defamatory because the mere fact of one’s removal from a job carries no imputation of dishonesty or lack of professional capacity, and only when the statement insinuates that the dismissal was for some misconduct can there be defamation.
SVA argued that it was defamed because the false statements were made in its name. The court also rejected this argument, concluding that the postings merely announced a job opening at SVA and could not be reasonably susceptible of any defamatory meaning.
With regard to the trade libel claim, the court found that the job postings did not contain any false matter derogatory to SVA’s business that was calculated to prevent others from dealing with SVA or interfering with SVA’s relations with others to its detriment.
The court also found that plaintiffs failed to state a cause of action for false designation of origin or dilution under the Lanham Act. Plaintiffs first contended that in posting the false job listings, the former employee violated §1125(a) of the Lanham Act by using in commerce a false designation of origin which caused deception, confusion and mistake as to the former employee’s connection and affiliation with SVA, and as to the origin, sponsorship and approval of the former employee’s commercial activities by SVA. Plaintiffs also asserted that the former employee violated §11125(c) of the Lanham Act by causing negative associations with and thus diluting the quality of SVA’s service mark. The court dismissed both arguments, finding that the posting of the job listings containing SVA’s mark was neither “in commerce” nor “in connection with goods or services” because the former employee was not involved in any business and was not competing with SVA or otherwise attempting to divert business or customers from SVA.
The court also concluded that the former employee’s conduct did not fall within the reach of the New York Civil Rights Law §§ 50-51, since there was no allegation that Pearlberg’s actual name was used on the job postings or in connection with the pornographic websites.
Finally, the court dismissed SVA’s claim for intentional interference with prospective economic advantage; because the job of human resources director was not in fact open, SVA would not have contracted with any of the applicants, the court reasoned. Because there was no possibility of contract, there was no actionable interference.