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A Manhattan judge has ordered New York pharmacy Duane Reade to pay compensatory and punitive damages for a lawsuit she said was intended to intimidate a man who spoke out against the drugstore chain in a newspaper advertisement. Acting Supreme Court Justice Debra A. James ruled that Duane Reade’s defamation suit, filed last year against a glass artist from Rockaway Beach, Queens, had no merit and “no purpose other than intimidation, harassment and punishment” against a man expressing his opinion. Justice James awarded the artist, Patrick Clark, and the newspaper that published his paid ad, The Wave of Long Island, attorney’s fees as well as unspecified damages under New York’s SLAPP statute: Strategic Lawsuit Against Public Participation. The statute is intended to deter well-heeled litigants from silencing public opposition through lawsuits, the judge wrote in Duane Reade, Inc. v. Clark, 107483/03. The dispute between Clark and Duane Reade centers on a local park with a memorial to Rockaway residents who died in the Sept. 11, 2001, terrorist attacks and a Duane Reade store that was built on the same block. Local business and community groups, including Duane Reade, contributed money to build the park, known as Tribute Park, and Clark was asked to create the centerpiece. Clark, however, felt that the billboard Duane Reade planned for the top of its store would disturb the intended mood of the park, which he said was meant for reflection. Clark voiced his opposition to the sign in a Wave advertisement that was labeled as voicing Clark’s personal opinion. Duane Reade’s billboard, Clark said, was an “aesthetic nightmare.” He described the company as “cotton ball mercenaries without a soul, hunting for prey” and said the company was “greedy.” He also called for a boycott of the store. Duane Reade responded by enlisting its law firm, Shearman & Sterling, to sue Clark and the Wave for defamation. Clark soon had the New York Civil Liberties Union and Proskauer Rose, acting pro bono, defending him. In siding with Clark and the newspaper, Justice James said Duane Reade had failed to demonstrate that the defendants had acted with actual malice, a prerequisite for maintaining a SLAPP suit. She said Clark’s ad was full of hyperbole, rhetoric and melodrama, all “beyond what any reasonable person would regard as fact.” The ad, James said, “constitutes pure opinion and is not actionable.” James also determined that Duane Reade had not shown any substantial basis for its suit, noting that the store eventually obtained a permit to put the sign atop its store and had not alleged any loss of business from the advertisement. The judge said she was “mystified” that Duane Reade did not accept the Wave’s offer to publish a rebuttal of Clark’s statements in the paper. Christopher Dunn, the NYCLU’s associate legal director, said, “In light of this finding we believe an award of substantial punitive damages may be warranted.” In a statement, Shearman & Sterling said, “We disagree with the court’s decision, and the company plans to appeal.” Arthur Eisenberg also appeared for the NYCLU, along with Sari Gabay Rafiy of Proskauer Rose. Cameron Stracher of Levine Sullivan Koch & Shultz represented the Wave. Kenneth M. Kramer and Adam S. Hakki handled the case for Shearman & Sterling.

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