Mr. Chow of New York v. Ste. Jour Azur S.A., 519

• Decision Date: 28 March 1985
• Docket Number: D,No. 519,519
• Citation: 759 F.2d 219
• Parties: 11 Media L. Rep. 1713 MR. CHOW OF NEW YORK, Plaintiff-Appellee, v. STE. JOUR AZUR S.A., Henri Gault and Christian Millau, Defendants-Appellants. ocket 84-7198.
• Court: U.S. Court of Appeals — Second Circuit

Page 219

759 F.2d 219

11 Media L. Rep. 1713

MR. CHOW OF NEW YORK, Plaintiff-Appellee, v. STE. JOUR AZUR S.A., Henri Gault and Christian Millau,

Defendants-Appellants.

No. 519, Docket 84-7198.

United States Court of Appeals, Second Circuit.

Argued Dec. 17, 1984.

Decided March 28, 1985.

Richard Kent Bernstein, New York City (Richard K. Bernstein Associates, New York City, of counsel), for defendants-appellants.

Kenneth E. Warner, New York City (Richard A. Greenberg, Marjorie M. Smith, Coblence & Warner, New York City, of counsel), for plaintiff-appellee.

Henry R. Kaufman, New York City (Sam Antar, Griffith W. Foxley, New York City, for American Broadcasting Companies, Inc.; R. Bruce Rich, Weil, Gotshal & Manges, New York City, for Association of American Publishers; Ronald E. Guttman, Associate General Counsel, CBS Inc., New York City, for CBS Inc.; Michael N. Pollet, Karpatkin Pollet Perlmutter & Beil, New York City, for Consumers Union of United States, Inc.; Peter C. Gould, Sabin, Bermant & Blau, Barbara Ann Cook, Asst. General Counsel, McGraw-Hill, Inc., New York City, for Magazine Publishers Association; Henry L. Baumann, Steven A. Bookshester, Washington, D.C., for National Association of Broadcasters; J. Marshall Wellborn, Jr., New York City, for National Broadcasting Company, Inc.; Marjorie Coleman, New York City, for New York News Inc.; Harry M. Johnston, III, Robin Bierstedt, New York City, for Time Incorporated; Martin Messinger, Rosalyn D. Young, New York City, for Westinghouse Broadcasting and Cable, Inc., of counsel), for amici curiae, American Broadcasting Companies, Inc., Association of American Before MESKILL, KEARSE and CARDAMONE, Circuit Judges.

Publishers, CBS Inc., Consumers Union of United States, Inc., Magazine Publishers Association, National Association of Broadcasters, National Book Critics Circle, National Broadcasting Company, Inc., New York Drama Critics Circle, New York Film Critics, New York News Inc., Mimi Sheraton, Time Incorporated and Westinghouse Broadcasting and Cable, Inc.

MESKILL, Circuit Judge:

Appellants Ste. Jour Azur S.A., Henri Gault and Christian Millau appeal from a judgment entered in the United States District Court for the Southern District of New York after a four day jury trial before Griesa, J. The jury returned a general verdict against appellants, finding that a restaurant review published by Ste. Jour Azur S.A. in the Gault/Millau Guide to New York had libeled appellee Mr. Chow of New York. The jury awarded $20,000 in compensatory damages and $5 in punitive damages. The district court denied appellants' motion for a judgment notwithstanding the verdict and entered judgment in favor of appellee.

For the reasons that follow, we vacate the judgment and remand with instructions to dismiss the complaint.

BACKGROUND

Ste. Jour Azur S.A. (Ste. Jour), a French corporation, is the publisher of a restaurant guide called Gault/Millau Guide to New York (Guide). Henri Gault and Christian Millau are the Guide's editors and are also shareholders in Ste. Jour. In April 1981, the Guide published, in French, a review of Mr. Chow, a restaurant located in New York City which specializes in Chinese cuisine. The review was written by Yves Bridault, a French journalist who had previously written reviews for the Guide. Bridault wrote his review based on his dining experience at Mr. Chow on December 18, 1980. Because of its importance to the resolution of the issues before us, we reproduce in its entirety an English translation of the review. ¹

Mr. Chow

324 E. 54th Street

(between 1st and 2nd Avenues)

(751-9030)

Every day until 11:45

Still another Chinese restaurant, but this one is the latest darling of fashionable society. Until the middle of the night "beautiful people" of all sorts crowd into this huge and very noisy room whose two levels bring back with brio the era of the (Western) 1930s with the customary array of walls lacquered black and beige, indirect lighting and banisters of gilded metal. Their ambition, apparently, is more to be seen in this superb decor than to eat Chinese style. While his London restaurant enjoys an honorable reputation (although it is clearly overrated) the branch which the clever Mr. Chow has just opened in New York is simply astounding from a culinary point of view. In a pinch, you might not care that you have to wait ten minutes to obtain chop-sticks instead of forks, that it is impossible to have the basic condiments (soy sauce, hot sauce, etc.) on the table, that the principal concern of the waiters (Italians) is to sell you expensive alcoholic drinks, but the last straw is that the dishes on the menu (very short) have only the slightest relationship to the essential spirit of Chinese cuisine. With their heavy and greasy dough, the dumplings, on our visit, resembled bad Italian ravioli, the steamed meatballs had a disturbingly gamy taste, the sweet and sour pork contained more dough (badly cooked) than meat, and the green peppers which accompanied it remained still frozen on the plate. The chicken with chili was rubbery and the rice, soaking, for some reason, in oil, totally insipid. Had we been specially punished for being On February 19, 1982 Mr. Chow of New York, the joint venture that owns Mr. Chow, commenced the instant action. In the complaint, Ste. Jour, Gault and Millau were named as defendants and jurisdiction was based on diversity of citizenship. The complaint alleged that the review contained false and defamatory statements and sought compensatory damages in excess of $10,000 and punitive damages in excess of $250,000.

                so pretentious as to drink only tea?    Apparently not, for the drinkers of alcohol seemed as badly off as we.  At a near-by table, the Peking lacquered duck (although ordered in advance) was made up of only one dish (instead of the three traditional ones), composed of pancakes the size of a saucer and the thickness of a finger.  At another table, the egg-rolls had the gauge of andouillette sausages, and the dough the thickness of large tagliatelle.  No matter, since the wine kept flowing.  We do not know where Mr. Chow recruits his cooks, but he would do well to send them for instruction somewhere in Chinatown.  There, at least, they still know the traditions.  It is, however, true, that when one sees with what epicurian airs his customers exclaim at canned lychees, one can predict for him a long and prosperous life uptown.  About $25, without the drinks
                

At trial, appellee's main witnesses were Dr. Lawrence Joseph, Michael Chow, Sik Chung Lam and Kooh Hong Kim. Dr. Joseph, a professor of French language and literature at Smith College, testified that he had translated the French version of the review into the English version. He also gave testimony concerning the accuracy of his translation of the phrase "the green peppers ... remained still frozen on the plate." Michael Chow, the founder of Mr. Chow, testified about food preparation at Mr. Chow, the traditional number of dishes in Peking Duck and the damages suffered by Mr. Chow. Sik Chung Lam, head chef at Mr. Chow, testified about the preparation of certain dishes at Mr. Chow and authenticated a video tape recording of the chefs at Mr. Chow preparing sweet and sour pork, green peppers and fried rice. Kooh Hong Kim, flour chef at Mr. Chow, also testified about the preparation of certain dishes at Mr. Chow and gave a live demonstration of his method of making Chinese pancakes.

Appellants called as witnesses Yves Bridault, Raymond Sokolov and Christine Bridault. Mr. Bridault, the reviewer, testified about his approach to writing reviews and the events surrounding his visit to Mr. Chow. Mr. Sokolov, a New York restaurant reviewer, testified about writing restaurant reviews generally, about the reputation of the Guide and about a negative dining experience he had had at Mr. Chow. Christine Bridault testified that she had accompanied her husband to Mr. Chow and that his review was an accurate description of their experience.

The district court submitted six statements to the jury. It instructed the jury that, as a matter of law, these were statements of fact and that if any one of them was false, defamatory and made with malice it would support a finding that the review had libeled Mr. Chow. The six statements submitted were:

(1) "It is impossible to have the basic condiments ... on the table."

(2) "The sweet and sour pork contained more dough ... than meat."

(3) "The green peppers ... remained still frozen on the plate."

(4) The rice was "soaking ... in oil."

(5) The Peking Duck "was made up of only one dish (instead of the traditional three)."

(6) The pancakes were "the thickness of a finger."

The jury returned a general verdict, finding that the review was libelous. It awarded $20,000 in compensatory and $5 in punitive damages. Appellants' motion for judgment notwithstanding the verdict was denied without opinion.

DISCUSSION

On appeal, appellants raise a host of grounds for reversal. Among them are a

claim that the statements submitted to the jury are opinion and thus protected speech and a claim that the evidence on the issue of malice is insufficient to support the jury's findings. Because we find these two claims dispositive of this appeal, we do not consider appellants' other claims. ²

A. Opinion

Appellants' initial argument is that the district court erred when it failed to hold that the statements submitted to the jury were opinion and thus privileged. Appellants' argument stems from the Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), where the Court stated:

We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of...