Bushnell Theatre
Bushnell Theatre ()

Whether a defamation claim can result from comments made to a legislative body has become the central issue in an ongoing lawsuit between an online Connecticut ticket business and a well-known Hartford theater.

Nearly three years ago, Vernon-based TicketNetwork filed a defamation lawsuit against Hartford’s Bushnell Performing Arts Center—a downtown fixture for more than seven decades—and its president and CEO David Fay.

Fay drew the ire of TicketNetwork and its CEO Don Vaccaro when he made disparaging remarks to lawmakers about the company. Fay’s comments were made at a Feb. 24, 2011, meeting of the General Assembly’s General Law Committee.

TicketNetwork believes Fay essentially called the company ticket scalpers. TicketNetwork maintains that the company does not purchase tickets to events; it simply acts as a website to link sellers and buyers, similar to StubHub and eBay.

According to the lawsuit filed by Brian O’Donnell and John Larson, of Reid and Riege in Hartford, Fay characterized TicketNetwork as a ticket broker to the lawmakers when he said the company “puts tickets to popular events on ‘hold’ and then attempts to sell those tickets to third parties at inflated prices before TicketNetwork purchases the tickets from The Bushnell.”

Fay also said the company “purchases tickets to events and then re-sells them at greatly inflated prices.”

TicketNetwork claims Fay reiterated his points to the Journal Inquirer later, which could be costly.

First Amendment expert Daniel Klau, of McElroy, Deutsch, Mulvaney & Carpenter’s Hartford office, and who is not involved in this dispute, said people testifying before legislative bodies are generally protected from suit based on the comments they make to them.

“There is an absolute privilege for statements made before a legislative body and you can’t successfully sue someone for defamation based on statements made to a legislative body,” Klau said.

This is the “overwhelming weight of authority” across the country in both the state and federal courts, Klau said.

“The [public] policy is that the legislature wants absolutely total complete candor from witnesses when they come to appear and one way to assure that is by giving them immunity from a civil lawsuit based on their testimony,” Klau said.

Knowing that defamation suits based on comments made before a legislative body are typically a dead end, a lawyer for The Bushnell, Joseph Musco, of the Law Offices of Brian J. Farrell Jr. in New Haven, filed a motion for summary judgment to have the case dismissed.

Further, the motion claims that a Journal Inquirer reporter was deposed and said the remarks made by Fay in his article were paraphrased from the legislative testimony and not made separately to him.

TicketNetwork’s lawyers, however, argue that Fay had a conversation with the reporter that defamed them. As such, an issue of material fact should allow the case to proceed to a jury.

“Given the presence of disputed issues of material fact, this court need not reach the defendants’ primary legal argument, which is that Mr. Fay’s comments to the legislature were absolutely privileged under Connecticut law, such that he was free to defame TicketNetwork without consequence,” wrote O’Donnell and Larson.

In a written ruling released earlier this month, Judge Trial Referee Jerry Wagner sided with TicketNetwork, agreeing that it should be up to a jury to decide whether Fay also made defamatory remarks to a reporter separate from his protected legislative testimony.

Calls to TicketNetworks’ attorneys were referred to the ticket company’s CEO, Vaccaro.

“We believe there is no absolute immunity for testifying at a legislative hearing,” Vaccaro said. “We believe that the state is well served by requiring folks to tell the truth.”

Musco, who represents The Bushnell, did not return calls.•