Neiman-Marcus v. Lait

United States District Court for the Southern District of New York · 1952 · Torts

13 F.R.D. 311 (1952)

Updated July 23, 2026

TortsLibelGroup DefamationCivil Proceduredefamationgroup libelsmall grouplarge group

Facts

Defendants authored a book, "U.S.A. Confidential," containing statements that some Neiman-Marcus models were call girls, that the salesgirls were also prostitutes and cheaper than the models, and that most of the sales staff were homosexuals. The plaintiffs were the Neiman-Marcus Company, nine models constituting the entire group of models, fifteen salesmen out of a total of twenty-five, and thirty saleswomen out of a total of 382. The salesmen and saleswomen sued on their own behalf and purported to sue on behalf of others similarly situated under Rule 23(a)(3). The motion at issue challenged whether the statements about the salesmen and saleswomen identified any ascertainable person so as to support individual libel claims.

Issue

Whether individual members of the Neiman-Marcus salesmen and saleswomen groups stated libel claims when the publication referred to the groups rather than naming individuals, and whether the amended complaint could proceed in its present combined form under the Federal Rules. More specifically, the court had to decide whether a statement about most salesmen in a group of twenty-five and a statement about saleswomen in a group of 382 could reasonably be treated as defamatory of individual members.

Rule

Where a libel targets a large group or class, no individual member may sue absent circumstances pointing to that particular plaintiff as the person defamed. Where the group is small and each member is referred to, any member may sue; and as to a small group, a statement defaming some or less than all of the group may still support suit by each member where no attempt is made to exclude the innocent and the publication casts suspicion on all. A Rule 23(a)(3) spurious class suit is a permissive joinder device appropriate where common questions of law and fact exist and common relief is sought, but separate groups injured by different statements may not be joined in one cause of action if that would unduly prejudice defendants.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A weekly magazine sold in New York and Texas reports that "most of the 18 appraisers at Lakeview Estate Auctions in Denver pad valuations for favored clients." Nina Flores, one of the 18 appraisers, is not named but sues for libel.

Should Nina's complaint likely survive a motion to dismiss?

Explanation. The majority opinion recognizes that when a defamatory statement concerns some or most members of a small group, and no effort is made to separate the innocent from the guilty, the charge may cast suspicion on all members. In that situation, an individual member may state a claim even if not named. A group of 18 is sufficiently small for that reasoning to apply at the pleading stage.