Torts II, Pages 892–893

Neiman-Marcus v. Lait

United States District Court for the Southern District of New York, 1952

Facts:

Plaintiff and its employees sued defendants, authors, for writing in their book that some of plaintiff's models and plaintiff's saleswomen were also prostitutes and that most of plaintiff's salesmen were homosexual.

Issue:

Does a cause of action lie for libel when the statement was about fewer than all members of a group?

Rule:

Page 893, Top

Where the group or class libelled is large, none can sue even though the language used is inclusive.
Where the group or class libelled is small, and each and every member of the group or class is referred to, then any individual member can sue.

Note:

The Restatement defines a large group as more than 25 people and a small group as 25 people or fewer.

Reasoning:

As defendants said that "most" of plaintiff's small group of salesmen was gay, this is sufficient for a cause of action for libel in New York.
Defendants did not specify how many of plaintiff's saleswomen were allegedly prostitutes. Of the 382 saleswomen, not one individual is named. No reasonable person would conclude that any specific saleswoman was a prostitute because of the article.
No circumstances were alleged that would suggest that plaintiff, as a business had been libeled.

Judgment:

Plaintiff's models' and saleswomen's causes of action dismissed. Defendant's motion to dismiss the salesmen's is denied.

Takeaway:

A cause of action lies for a member of a defamed group when the group is small. When a group is large, statements about that group must have particular circumstances that point to the plaintiff as the person defamed.