Breach of fiduciary duty. (In The Courts).

A nonfiduciary may not be held liable as a co-conspirator with a fiduciary on a claim for breach of fiduciary duty, because it is legally incapable of committing the tort.

Everest Investors 8 v. Whitehall Real Estate Ltd. Partnership XI, 2002 WL 1773312 (Cal. Ct. App., Aug. 2, 2002). See discussion of this case in the "Civil Conspiracy" section infra.

Business Defamation and Disparagement

Federal court certifies to Connecticut Supreme Court question whether state recognizes cause of action for compelled self-publication defamation.

Cweklinsky v. Mobil Chemical Co., 2002 WL 1613537 (2d Cir., July 23, 2002). Victor Cweklinsky had been employed by defendant Mobil Chemical Company as a machinist for 25 years when, in November 1998, Cweklinsky was given approximately six weeks of paid medical leave to undergo carpal tunnel syndrome surgery on his wrist.

In early December, Cweklinsky's treating physician gave Cweklinsky a return-to-work letter that cleared him to return to full-time, full-duty work on December 11. When December 11 came, however, Cweklinsky did not report to work, but instead had the office manager in his physician's office alter the return-to-work letter to change the return date from December 11 to December 14. Cweklinsky did not tell the office manager that he had already been scheduled to work on December 12, a Saturday, and December 13, a Sunday.

The office manager acceded to Cweklinsky's wishes and changed the return-to-work date on Cweklinsky's copy of the letter to December 14. However, the office copy, in Cweklinsky's physician's fries, was not changed.

When Cweklinsky reported to work on December 14, he gave the changed copy of the return-to-work letter to his supervisor, who then consulted with the human resources manager about the discrepancy in the return-to-work dates.

The Mobil officials investigated and determined that the letter had been altered, because the letter in the physician's fries indicated the December 11 return-to-work date. The officials assumed that the alteration had been made by Cweklinsky himself, and although Cweklinsky denied making the alteration, he did not tell the Mobil people that it was the officer manager who had made the change at Cweklinsky's request.

A further investigation by Mobil, in which the officer manager was questioned, revealed the truth of the matter, and Cweklinsky's physician told Mobil that there was no medical basis to support the extension of the return-to-work date made by the officer manager.

Mobil decided to terminate Cweklinsky. The reason given for the termination was not the alteration of the letter, but rather because he took paid medical leave without a medical basis. The termination letter noted that Cweklinsky did not tell anyone in the physician's office that he had been scheduled to work on December 12 and 13 and that by asking someone to change his return-to-work date without disclosing this information, Cweklinsky had fraudulently obtained additional time off with full pay to which he was not entitled.

Cweklinsky filed an eleven-count complaint against Mobil, including a claim for defamation. The jury found for Cweklinsky on this claim, as well on a claim for breach of implied contract, and the total judgment awarded by the court was $837,000.

On appeal, the defendant argued that the district court improperly instructed the jury on the law of defamation. The court had told the jury that the publication element of the cause of action could be established in one of two ways: (1) by showing that the defamatory statements were "published" by being communicated to a third person other than Cweeklinsky, even if the communications were between and among Mobil's employees involved in the investigation and termination of Cweklinsky; or (2) by showing that Cweklinsky was "compelled to repeat the defamatory statements to …