# Petition for Writ of Certiorari — Schuler v. McGraw-Hill Cos., Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1020

## Text

Supmne
| Pri py’

8 705 aus 2 4 1999
No. JF std Caton

In The
SUPREME COURT OF THE UNITED STATES

October Term, 1998
ELEANOR SCHULER,
Petitioner,

vs.

THE MCGRAW-HILL COMPANIES, INC.,

including BUSINESS WEEK, an

unincorporated division or subsidiar:

of THE MCGRAW-HILL COMPANIES, INC..,

a New York Corporation, BUSINESS WEEK ONLINE,
GARY WEISS, individually and as employee of

THE MCGRAW-HILL COMPANIES, INC., and
MICHAEL SCHROEDER, individually and as

employee of THE MCGRAW-HILL COMPANIES, INC.,

Respondents.

On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Eleanor Schuler
Petitioner, Pro Se

2201 Spruce Needle Rd.
Rio Rancho, NM 87124
(505) 892-2189

i
QUESTIONS PRESENTED

Is an American Citizen’s right to protect her reputation
entitled to equal protection of the law as against media
attacks?

Can a trial court deny a citizen’s right to and demand for
a jury trial and determine matters of fact, innuendo,
insinuation, and malice, which Clearly are within the
purview of the jury to decide?

i
PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the
Petitioner is associated with the following entities: Printron,
Inc. and it's subsidiary Heartbeat Medical Corporation.

Respondents listed the following entities and subsidiaries
in its corporate disclosure statement: The McGraw-Hill
Companies, Inc.; CM Research, Inc.; Capital Radio Engineering
Institute, Inc. (National Radio Institute); Computer and
Communications Information Group, Inc.; DRI Europe Inc.;
International Advertising/McGraw-Hill, Inc.; J. J. Kenny
_Company, Inc. (J.J. Kenny Drake, Inc. & Kenny Services, Inc.
& Liberty Brokerage Investment Corp.); McGraw-Hill
Broadcasting Company, Inc.; McGraw-Hill Capital Corporation;
McGraw-Hill Capita!, Inc. (International Valuation Services,
Inc.); McGraw-Hill financial Publications, Inc.; McGraw-Hill
Interamericana, Inc.; McGraw-Hill International Enterprises,
Inc. (McGraw-Hill Korea, Inc. & McGraw-Hill (Malaysia)
Sdn.Bhd); McGraw-Hill New Bureaus, Inc.; McGraw-Hill
Publications Overseas Corporation; McGraw-Hill; McGraw-Hill
Real Estate, Inc.; McGraw-Hill World University, Inc.; MMS
International; Money Market Directories, Inc.; Rock-McGraw,
Inc.; S&P ComStock, Inc.; Standard & Poor's International
Ratings, Ltd.;Standard & Poor's Investment Advisory Services,
Inc.; Standard & Poor's Ltd. (Fund Research Limited);
Standard & Poor's Securities, Inc.; Tower Group International,
Inc. (Tower Group International Canada Inc.); Columbia
Administration Software Publishing Corporation; editora
McGraw-Hillde Portugal, Ltda.; Editorial Interamericana, S.A.;
Editoriales Pedagogicas Associadas, $.A.; McGraw-Hill Book
Company

In determining such a motion, the Court "must accept all
well-pleaded allegations in the complaint as true and construe
them in the light most favorable to the Plaintiff." Innovative
Digital Equip., Inc. v. Quantum Tech., Inc., 597 F. Supp. 983,
988 (N.D. Ohio 1984). The Court may consider documents
attached to Plaintiffs Complaint, in determining whether
Plaintiffs Complaint is sufficiently plead. Id. At issue is
whether Plaintiff is entitled to offer evidence to support her
claims, not the merits of the claims themselves. Dear, 854 F.
Supp. at 631-32.

5 Ba ett

a
“ 7 " a -"

App. 59

Motions to dismiss under Rule 12(b)(6) are viewed with
disfavor. Resolution Trust Corp. v. Dean, 854 F. Supp. 626,
632 (D. Ariz. 1994). Dismissal of a complaint under Federe’
Rule of Civil Procedure 12(b)(6) can be granted only if it

appears beyond doubt that the Plaintiff can prove no set of facts
that would entitle her to judgment. Lafoy v. HMO Colorado,
988 F.2d 97, 98 (10th Cir. 1993); Dean, 854 F. Supp. at 631.
Conversely, the Court should deny such a motion if any legal

theory exists for recovery. Innovative Digital Equip., Inc. v.
Quantum Tech., Inc., 597 F. Supp. 983, 988 (N.D. Ohio 1984).

In this case, the Defendants’ Motion relies upon facts
which are outside the scope of the pleadings, and those facts are
neither undisputed nor supported by affidavit or deposition
testimony. While Plaintiff is not prepared to submit all of its
legal arguments at this time, and is not procedurally required to
do so, she will present certain legal arguments in response to the
Motion to Dismiss.

Defendants pick out a number of statements from the
more than four page article and state that they are undisputed
facts. Those facts, Defendants claim, are neither defamatory nor
invade Plaintiff's privacy and make Plaintiff's case groundless.
The exact opposite is true. The article, when read as a whole is
malicious and defamatory to Plaintiff. Even if some of the
Statements are true, arguendo, the article must be read as a
whole and then specific statements analyzed separately for each
individual harm.

The Defendants state that Plaintiff's claims should be
dismissed because they are unwarranted and may create a
chilling effect on public disclosure. Nevertheless, the Motion to
Dismiss must be analyzed in the light most favorable to the
Plaintiff.

App. 60

PL :

Defamation is recognized as a cause of action in New
Mexico. Bookout v. Griffin, 97 N.M. 336, 539 P.2d 1193
(1982); Marchiondo v. N.M. State Tribune Co., 98 N.M. 282,
648 P.2d 321 (Ct. App. 1981). A statement is defamatory if it
injures the reputation of the Plaintiff in the community and
subjects the Piaintiff to hatred, contempt or ridicule. In order to
be actionable, the statement must concern the Plaintiff, be false,
and must bring the Plaintiff into disrepute and impeach her
honesty, integrity, virtue, or reputation.

A. DEFAMATION PER SE
(1) Complaint Paragraph 13 (b)

"CHANGE SEX, CHANGE THE PAST:
BEFORE BECOMING PRINTRON CEO AS
ELEANOR SCHULER, JOHN HUMINIK JR.
RAN TWO COMPANIES THE SEC
ACCUSED OF FRAUD. WHO KNEW?"

Defendants ask the Court to believe that the statement
"CHANGE SEX, CHANGE THE PAST" invokes a question.
Defendants want the Court to believe this phrase to be a tag
line. This "tag line" is defamatory in that it infers that Schuler
changed her sex in order to change her past so the SEC would
overlook a 1976 injunction against her when the agency
imposed a similarly lenient penalty against her for another
episode of alleged securities fraud in 1991. The statement is no:
a question. There is nothing in the article supporting
Defendants’ allegation that the SEC overlooked the 1976

Pe ee

App. 61

injunction because of Plaintiffs sex change and not knowing
Schuler to be Huminik, and subsequently imposed a similarly
lenient penalty in 1991. Not only is the statement false, but the
Defendants try to insinuate Schuler's alleged: cover-up by
innuendo and insinuation that her sex change waswreformed for
any reason other than a medical one.

Schuler's sex change was preformed in early 1976. The
1976 consent decree was signed by Schuler and clearly stated
"formerly known as John Huminik, Jr.". The 1991 consent
decree was also signed by Schuler. The SEC clearly knew she
was one in the same. The plain and obvious import outlined in
Andrews, 119 N.M. at 485, 892 P.2nd at 618 was to defame
Plaintiff. The Defendants would have the readers believe
Schuler opted for a sex change operation to conceal an SEC
filing rather than to cure a gender disorder.

(2) Complaint Paragraph 13 (f)
"But she doesn't like to talk about that"

Defendants would have the readers believe that Plaintiff
didn't like to talk about her "pistol packing" days. This
statement is also false. Schuler wrote a book about her
adventures as a United States FBI agent. Defendants turn
Schuler's patriotism for the United States into a mockery.
Plaintiff openly talked about that aspect of her life. Nonetheless,
in 1979 Schuler quit making public appearances. She sought the
mantel of a private person by relocating to a smaller town, and
she ceased making public appearances. The statement is
defamatory in that it subjects Schuler to ridicule and contempt
as a loyal U.S. citizen. Not only do Defendants make a false
statement but in addition, they insinuate that Plaintiff's role as an
FBI agent was less than honorable and that Plaintiff tried to hide

App. 62
it.
(3) Complaint Paragraph 13 (h)

"There was a stain on her record... One of the
injunctions was known to the Amex when it
approved Printron's listing on the EMC. The
other was not."

This excerpt of the statement is patently false. The SEC
regulations hold that any involvement in certain legal
proceedings that occurred during the last five years must be
disclosed 17 C.F.R. §§ 229.401(f). Although Defendants
intimate otherwise, Plaintiff had no duty to disclose the 1976
injunction. In addition, Plaintiff signed both injunctions as
"Eleanor L. Schuler" making it known to whoever researched
her or Huminik's business history.

(4) Complaint Paragraph 13 (i)

“Eleanor Schuler had two records of alleged
securities law transgressions -- one as a woman
and one as a man. In fact, the name “Eleanor
Schuler’ was one that she had made up out of
thin air."

Once again the statement is false. Eleanor Schuler had
already completed the sex change operation at the time of the
1976 consent decree. She signed the 1976 consent decree as
Eleanor L. Schuler; therefore, both were entered as against
Schuler and not Huminik. The name Eleanor L. Schuler was not
made up out of thin air as Defendants lead the Court to believe;
but, was thoroughly researched and thou ht out by Plaintiff at
the time of the sex change. The name does not have to resemble

App. 63
"Huminik" to be valid and/or meaningful.
(5) Complaint Paragraph 13 (k)

"Her earlier SEC record, and her change in
gender, were concealed by Printron... Schuler
also hid her previous identity, and the injunction,
from securities regulators in New York..."

The "box" information as the Defendants put it, ask
questions to which Schuler replied. At the time Plaintiff signed
the consent decree she had just become Printron's CEO.
However, at the time of the infraction which eventually lead to
the consent decree, Schuler had no leadership role in the
company and merely signed the consent decree on behalf of
Printron, Inc., so that the company could proceed with its
offering. The questions highlighted by Defendants seek to
insinuate that Plaintiff deliberately lied or misled the SEC.
Plaintiff's name and sex had been changed all the way back to
her birth certificate. Plaintiff did not and does not consider her
medical background material to her business proceedings; that
which was material had been reported honestly and fairly. Both
consent decrees were signed by Schuler, and both are a matter
of public record. Additionally, as the 1976 decree was signed
by Schuler, it clearly states under the signature line, "John
Huminik Jr., now known as Eleanor L. Schuler." Schuler in no
way hid her identity nor the 1976 consent from SEC Regulators.
However, by blatantly stating that Schuler “hid her previous
identity, and the injunction," Defendants' maliciously misstated
the facts.

(6) Complaint Paragraph 13 (s)

"As recounted in his slickly written 1967 book"

App. 64

The phrase "slickly written" on its face is not
complementary, despite Defendant's assertions. Defendants’
assertions that the statements at issue are “opinions” is not
supported by the evidence. In determining whether a
communication is or contains a statement of "fact" or “opinion,”
the fact finder must consider: "(A) The entirety of the
communication and the context in which the communication was
made; and (B) wither reasonable persons would be likely to
understand the communication to be a statement of the
Defendants’ opinion or a statement of fact." $.C.R.A. 1896, 1-

004 (Repl Pamp. 1986).

"[An] opinion which implies that it is based upon the
existence of undisclosed facts is the same as a statement of fact."
Id. Where a statement alleged to be defamatory can be
interpreted as either fact or opinion, and the Court cannot rule
that, as a matter of law, the statement was not understood as
fact, "there is a triable issue of fact for the jury." Marchiondo v.
Brown, 98 N.M. 394, 404, 649 P.2d 462, 472 (1982) (quoting
Bindrim v. Mitchell, 92. Cal. App. 3d 61, 155 Cal. Rptr. 29, 39,
cert.denied., 444 U.S. 984, 62 L. Ed. 2d 412, 100 S. Ct. 490
(1979)). Likewise, statements purporting to be opinions often
are understood to be factual statements. See Marchiondo, 98
N.M. at 401, 649 P.2d at 469. “[W]Jhere there are implications
in the statement “that the writer has private, underlying
knowledge to substantiate his comments about Plaintiff," and
such knowledge implies the existence of defamatory facts, the
Statement is deemed to be factual and not protected or
privileged. Kurtz v. Independent Pub. Co., Inc., 97 N.M. 243,
246, 638 P.2d 1088, 1091 (Ct. App 1981); Marchiondo v.
Brown, 98 N.M. 394, 649 P.2d 472 (1982).

App. 65
(7) Complaint Paragraph 13 (v)

"At issue is not her sex change, but rather the
extent to which her concealment of that change
masked other things."

Defendants argue that the statement above is nothing
more than a pointed issue of public concern. The statement is
not meant as a “pointed question" but as a malicious defamatory
statement made to insinuate that Schuler hid her sex change to
conceal the 1976 consent decree. That consent decree was
signed by Schuler. She hid nothing about her past business
dealings. The Defendants wrote the statement to subject
Plaintiff to ridicule and public hatred. Plaintiff had no duty to
disclose her medical background. She had the sex change for
valid medical purposes; she did not have a sex change operation
to hide her past. Furthermore, although Defendants state that
the sex change is not at issue, they make reference to it over a
dozen times throughout the four page article. Each reference is
mean toned and malicious and has absolutely nothing to do with
Plaintiff's business dealings.

(8) Complaint Paragraph 13 (ab)
"Zimmerman maintains that a previous
injunction is a ‘material event’ that must be
disclosed beyond the five-year period set by the
rules."

Plaintiff both disputes the accuracy of Zimmerman's
Statement and the manner and tone in which it is conveyed.
Defendant's argue the statement is legal opinion, however,
Statements purporting to be opinion are often understood to be
factual statements and questions for the jury. Marchiondo, 98
N.M. at 401, 649 P.2d at 469. The statement is materially false

App. 66

and is written into the article to insinuate that Plaintiff has
committed criminal acts. Defendants imply that Schuler had an
obligation to disclose the previous injunction “beyond” five
years as being a “material event". This statement is patently
false. In fact, 17 CFR Chapter 11 § 229.401 (f) states in part,
"involvement in certain legal proceedings. Describe any of the
following events that occurred during the past five years and
that are material..." Defendant's argue that more statements also
pose questions but that still does not make this statement any
less defamatory or false.

(9) Complaint Paragraph 13 (ah)

"One explanation might be that the SEC felt so
much time had passed that it would not pursue
a criminal contempt action against Schuler."

Defendants suggest that his statement is not ‘concerning’
Schuler. It specifically talks about Schuler and suggests,
implies, and insinuates that she committed criminal acts.
Defendants try to mask the false statements as theory or
opinion. However, such statements describe acts of which there
is not a shred of proof. Defendants have written several false
Statements into the four page article. The Defendants hide
behind the cloak of opinion and theory; however, the malicious
nature and meaning of the article is clear. Defendant's argue the
statement is legal opinion, however, statements purporting to be
opinion are often understood to be factual statements and
questions for the jury. Marchiondo, 98 N.M. at 401, 649 P.2d
at 469.

App. 67
(10) Complaint Paragraph 13 (ak)

"But they are listed as two separate people, with
one ‘incident’ to his name and one to hers."

Defendants purport that this statement does not
‘concern’ Schuler. The statement specifically talks about
Plaintiffs two consent decrees. The Defendants fail to tell its
readers that Schuler’s sex change had already taken place and
that Plaintiff signed both consent decrees as Eleanor L. Schuler.

Allegations that the article contained false statements
“maliciously made" must be taken as admitted and the
Complaint cannot be dismissed for failure to state a claim.
Stewart v. Ging, 64 N.M. 270, 274, 327 P.2d 333 (1958).
Plaintiff's above referenced statement sufficiently state a claim
for defamation and thus defendants motion should be denied.

In the event that the Court accepts that the above
outlined statements are opinion and theory rather than
statements defamatory per se, Plaintiff maintains her cause of
action for defamation in that the statements remain defamatory
because they are filled with innuendo and insinuation that
Plaintiff hid illegal business practices through her sex change
when in fact she followed the SEC rules and regulations in filing
and simply kept her medical history private, to which she had
every right to do.

B. DEFAMATION PER D

New Mexico recognizes liability for statements from
which a defamatory inference may be drawn. Moore v. Sun

Publishing Corp., 118 N.M. 375, 884 P.2d 735 (Ct. App.
1994). A cause of action will lie for defamation even if the

App. 68

statement is not per se false if the statement is filled with
implication, insinuation or innuendo accompanied by
explanatory circumstances.

(1) Complaint Paragraph 13 (c)

"DID THE AMEX TURN A BLIND EYE TO
A “SHOWCASE' STOCK?"

Although Schuler's name does not appear in the title, the
article concerns her prior business practices and prior two
consent decrees. Defendants state that the target of the criticism
is the American Stock Exchange, not Schuler, but yet one
picture of Schuler & one picture of John Huminik appear on the
title page of the offending article. The title insinuates that there
was wrongdoing in that Schuler hid her prior consent decree
with a sex change operation, that she had a duty to disclose the
1976 consent decree as well as her sex change operation and
that the AMEX knew Schuler failed to disclose the
aforementioned, and thus ignored said wrongdoing.

(2) Complaint Paragraph 13 (g)

“CHECKERED RECORD" implies a sort of shifty or
shady past. Defendants maintain this to be opinion but, once
again this is an issue for the jury to decide. See supra pt.
I(A)(8)

(3) Complaint Paragraph 13 (k)

"Her earlier SEC record," etc. See supra pt. I(A)(5)

App. 69
(4) Complaint Paragraph 13 (n)
"Schuler/Huminik affair"

Defendants wov.d have the Court believe the statement
was convenient shorthand needless to say, the only shorthand in
a four page article. There was never a Huminik-Schuler affair.
The above listed statement is not shorthand but in fact words
used to portray that Schuler did not act honestly. The statement
sugg¢ sts that Schuler is either a multiple personality or involved
in a game of hide and seek.

(5) Complaint Paragraph 13 (s)

"As recounted in his slickly written 1967 book"
See supra pt. I(A)(6).

(6) Complaint Paragraph 13 (t)
"Neither the book nor the double-agent career
were mentioned in any of Printron’s filings with
investors and regulators."

Plaintiff had no duty to disclose such information when
in fact there was no such duty imposed by the SEC. Defendants
try to circumvent the malicious nature of the statement by
stating that the next sentence dispels the implication.

(7) Complaint Paragraph 13 (u)
“We have nothing against transsexuals"

Defendants insinuate that transsexualism is a negative
state of being and that plaintiff had a duty to disclose her sex
change in the perspectus. There is no such requirement.

App. 70

Defendants further state that the quote does imply anything
derogatory about transsexuals in general or Schuler in
particular. The fallacy of their argument becomes apparent
when one substitutes the term "nigger" or "mexican" for
"transsexuals".

(8) Complaint Paragraph 13 (w)

"The trouble... arises whenever Schuler’s pre-Schuler
activities are mentioned in Printron's public disclosures. Time
after time, they refer to Schuler as a ‘she’ -- even when
discussing positions held when Schuler was a “he’."

This statement leads the readers to believe that Plaintiff's
pre-Schuler activities were both illegal and not disclosed in the
Printron filing. In reality, Plaintiff committed no wrong doing.
Printron followed the letter of the law and all of the SEC's rules
and regulations. Furthermore, Plaintiff had no duty to disclose
her sex change. Both consent decrees were signed by Eleanor
L. Schuler. Plaintiff agreed to be held accountable for both
infractions. Defendants would have the readers believe the two
consent decrees were grave criminal acts; however, they are
standard pleadings companies admit to when a prospectus has
not been fully complied with. Perhaps that is one reason the
SEC does not require disclosure beyond five years.

Printron's disclosures refer to Schuler as a "she" because
all the documents are signed by Eleanor Schuler, a female.
Schuler's sex change occurred in 1976.

(9) Complaint Paragraph 13 (z)

"Was Schuler being shy -- or was she improperly
misleading investors?"

App. 71

Once again the Defendants’ insinuate that this is a
question of public concern. However, because Plaintiff had
never been charged criminally, for Defendants’ to insinuate so,
was simply false. Furthermore, there is no evidence to illustrate
that Plaintiff properly misled investors, thus, to elude is also
false.

- (10) Complaint Paragraph 13 (ac)
"The next Huminik/Schuler exploit"

See supra pt. I(B)(4), except that "exploit is used rather
than "affair."

(11) Complaint Paragraph 13 (ad)

"John Huminik was no longer exhibiting a James
Bond persona. “Marine blue shadow haloes the
eyelids,'... The Post went on to describe the sex
change and, in graphic detail... None of this
would amount to a hill of beans if Eleanor
Schuler, as Printron CEO, hadn't fallen afoul of
the SEC."

The statement is false because Plaintiff did not and has
not fallen afoul to the SEC. Schuler did in fact sign two
separate consent decrees, however, as the CEO of Printron,
Inc., has never been sanctioned.

(12) Complaint Paragraph 13 (ae)
“The Huber-Schuler ties were shrugged off by

the blue-ribbon panel. “We were assured by the
Amex staff that the issue had been resolved.”

App. 72

Defendants imply that Huber-Schuler were acting in
concert to commit wrongdoing. There is no evidence to support
Defendants’ notion of conspiracy or any deception whatsoever.
Not only was Plaintiff not aware of Huber's past, but she was
under no obligation to know, since she was hired by Huber.

(13) Complaint paragraph 13 (af) and (ag)

"But Hamarat and another former panel
member,... now say that the panel didn't know
that Eleanor Schuler used to be John Huminik --
or that Schuler consented to not one but two
iniunctions by the SEC. If they had known, they
say, Printron's listing would never have been

approv "
"The SEC's mild treatment of Schuler in 1991

raises yet another issue: Did the SEC know in
1991 that Schuler was Huminik?

See supra pt. I(A)(5)
(14) Complaint Paragraph 13 (ai)
"Huminik/Schuler matter” See supra pt. I(B)(<)

Plaintiff's above referenced statements sufficiently state
a Claim for defamation.

EEA ET ALTE CERES SIE AGEL EE ATER a nar NE Sep etna Agr

App. 73 _

COUNT I
PL PROPERLY
ATES A FOR F LIGHT

INV N OF PRIVACY

Invasion of privacy is recognized as a cause of action in
New Mexico. Moore v. Sun Publishing Corp., 118 N.M. 375,
383, 881 P.2d 735, 743 (Ct. App. 1994), cert. denied, 118 N.M.
430, 882 P.2d 21 (1994). False light invasion of privacy
consists of placing one in a false light before the public. id. To
establish such a claim, a plaintiff need only show that she was
“given unreasonable and highly objectionable publicity that
attributes to [her] characteristics, conduct or beliefs that are
false, and so is placed before the public in a false position."
Restatement (Second) of Torts § 652E cmt. b, at 395.

"[A] false light claim may be established where true
information is published if the information tends to imply
falsehoods. Larsen v. Philadelphia Newspapers, Inc., 375 Pa.
Super. 66, 543 A.2d 1181, 1189 (Pa. Super. Ct.), appeals
denied, 552 A.2d 251 and 552 A.2d 252 and 552 A.2d 968
(1988), cert. denied, 489 U.S. 1096 (1989). See also Jonap v.
Silver, 1 Conn. App. 550, 474 A.2d 800, 806 (Conn. Ct. App.
1984) Gury verdict sustained where there was evidence that
defendants caused letter to be published in a magazine that
attributed to plaintiff views that were not his own and that there
was a major misrepresentation of his character, history,
activities, or beliefs).

Further New Mexico recognizes the tort of defamation
by implication. Moore v. Sun Publishing Corp., 118 N.M. 375,
381, 881 P.2d 735, 741 (Ct. App.), cert. denied, 118 N.M. 430
(1994). In Moore the New Mexico Court of Appeals
recognized that "reputational injury caused by acommunication

App. 74

may result not from what is said but from what is imptied."" Id.
at 381 (quoting Rodney A. Smolla, Law of Defamation §
4.05[1], at 4-17 (1994)).

The statements outlined by Plaintiff's Complaint
(Complaint), and included in its entirety as Exhibit 1 to that
Complaint, give “unreasonable and highly objectionable publicity
that attributes to [her] characteristics, conduct or beliefs that are
false," and which place her before the public in = false position.
See Restatement (Second) of Torts § 652E cmt. b, at 395. The
statements referenced in Plaintiff's Complaint were made in the
context of an internationally circulated "business" periodical, in
its "Finance" section. The article appeared within a "Finance"
subsection entitled "Investigations." This context is one in
which a reasonable person would expect to find statements of
fact and in which reasonable persons would interpret statements
as factual. Further, the magazine is targeted at business
professionals and others associated with and/or interested in
business matters. It is in this context that the offending article
must be evaluated.

(1) Complaint Paragraphs 13 (a) and (b)

Plaintiffs Complaint paragraph 13 (a) depicts a
photograph of Plaintiff in a manner which implies falsehoods.
The subject photograph features a close up black and white shot
of Plaintiff in a social setting, set in the top, center of the index,
in contrast to surrounding color photographs of persons in
professional attire and settings. This portrayal of Plaintiff
sharply contrasts with the magazine's typical portrayal of
business professionals.

Both separately and taken together, the subject
photograph and its caption ("CHANGE SEX, CHANGE THE

App. 75

PAST") attribute to Plaintiff characteristics including the
implication that she is deceptive, dishonest, immoral, and
untruthful, particularly with regard to her past business dealings.
They further imply that Plaintiff changed her sex for other than
medical reasons, in order to escape liability or responsibility for
some heinous act in her past, and° that the authors have
knowledge of undisclosed facts supporting such a conclusion.
This portrayal of Plaintiff is highly objectionable and
unreasonable, particularly in light of the fact that the article's
target audience is of the type with whom Plaintiff does business.

Plaintiff denies that she changed sex for other than
medical reasons. The reasons for Plaintiff's sex change and her
prior and past reputation in the business community are matters
of fact which can be proven or disproved. Therefore,
Defendants' contentions that these items are constitutionally
protected "opinion" is not supported by the evidence and their
Motion should be denied on this point.

Defendants assert that Plaintiffs privacy could not be
invaded by republication of photograph for which she posed.
This is clearly false. The subject photograph is not the
photograph published in People magazine.

Further, Defendants characterization of the photograph
Caption as "a question" is not supported by the evidence. The
relevant portion of the caption does not contain a question mark
at the end of that phrase and clearly asserts the matters
referenced above, including the implication that Plaintiff had
good reason to change her past to avoid responsibility for and
serious consequences of her past misdeeds.

App. 76
(2) Complaint Paragraph 13 (f)

The article also includes the following statements:

In her wildly varied career, she had been a welder,
entrepreneur, corporate executive, and even a pistol-
packing Federal Bureau of Investigation double agent
who had battled Soviet spies during the Cold War. But

The underlined statement is a false statement of fact. It
can be proven or disproved whether Plaintiff “liked to" or in fact
“did" talk about her career history. Defendants’ statement that
Plaintiff didn't like to talk about her past career is unreasonable
and highly objectionable particularly in view of facts that she
published a book about her experiences as a "double agent" and
other discussions of her career. The subject staternent attributes
to Plaintiff false characteristics, conduct, and/or beliefs including
that she is unwilling to discuss or acknowledge her past careers,
that she is attempting to hide or conceal her past, that she is
untruthful and deceptive, and that she has good reason to hide
her past to avoid responsibility for prior misdeeds.

(3) Complaint Paragraphs 13 (h), (k), (t),
and (w)

Several paragraphs in the offending article imply that
Plaintiff had a duty to disclose certain information, when in fact
no such duty existed. For example, Plaintiffs Complaint
references the following portions of the offending article:

One of the in; stions was known to the Amex
when it approv. Printron's listing on the ECM.
The other was not. (h)

App. 77

Schuler also hid her previous identity, and the
injunction, from securities regulators in New
York, in a "sunshine law" filing[.] (k)

Neither the book nor the double-agent career
were mentioned in any of Printron's filings with
investors and regulators. (t)

Time after time [Printron's public disclosures]
refer to Schuler as a "she" - even when
discussing positions held when Schuler was a
"he." (w)

All of the above statements imply that Plaintiff had a
duty to disclose the referenced information and that she failed to
do so. Thus, the statements imply falsehoods with regard to
Plaintiffs' disclosure duties and attribute to her the
characteristics noted above in this section, including deceptive,
devious, immoral, and untruthful conduct.

(4) Complaint Paragraph 13 (i)

The article's statement that "[i]n fact, the name “Eleanor
Schuler’ was one that she had made up out of thin air[,]" places
Plaintiff in a false light by stating as a fact that the name was
"made up," and by further implying that Plaintiff "made up” the
name for fraudulent or deceptive reasons.

(S) | Complaint Paragraph 13 (v)

Likewise, Defendant's statement in the offending article
that “At issue is not [Schuler's] sex change, but the extent to
which her concealment of the change masked other things[,]"
falsely states that Plaintiff concealed her sex change and further

App. 78

implies that she did so in order to "mask" or "conceal"
additional matters. As in the case of the above statements, this
statement places Plaintiff in a false light by unreasonably and in
a highly objectionable manner attributing to her characteristics,
belief, and/or conduct including deception, dishonesty, and other
misdeeds. Plaintiff sufficiently states a claim for false light on
this point.

(6) Complaint Paragraph 13 (x)

Defendants’ article also includes the following
Statements:

Moreover, the filings say that Schuler was a ‘self-
employed technology and corporate consultant’ from
1966 to 1991.

In fact, Schuler, as Huminik, was president of
General Industrial Corp. and General Enterprises Corp.,
which allegedly defrauded investors during the 1970s.

These statements imply that Plaintiff's description of her
past employment included in the "filings" is deceptive. As with
the above statements, these statements place Plaintiff in a false
light by attributing to her false characteristics and conduct,
including deception, dishonesty, and an intent to defraud
company investors and others. Plaintiff's claims in this regard
sufficiently state a claim for false light.

(7) Complaint Paragraph 13 (ag)
The article also included the following statement:

App. 79

The SEC's mild treatment of Schuler in 1991 raises yet
another issue: Did the SEC know in 1991 that Schuler
was Huminik?

The last sentence of this statement clearly implies that
the SEC did not know that Schuler was Huminik, thus, implying
that Schuler was deceitful, dishonest, and deceptive in sone
manner with regard to the SEC and her business dealings. In
fact, the SEC did know that Schuler was Huminik as evidenced
by the Consent, attached hereto as Exhibit 1, regarding the
injunction involving General Industrial Corporation and General
Enterprises Corporation. Specifically, the Consent's signature
line reads "John Huminik, Jr., now known as Eleanor L.
Schuler[.]" Defendants’ statement and inquiry into this area
placed Plaintiff in a false light before the public by stating as a
fact and implying that she deceived the SEC by hiding her prior
sex change from it, and further, that she did so to further her
own devious ends.

When read as a whole, the article clearly indicates that
Plaintiff is a deceptive, dishonest, disreputable business person
who has committed "offensive" and "illegal" acts. The above
statements, and those referenced in Plaintiffs Complaint and
incorporated herein by reference, sufficiently state a claim for
false light. Interpreting these statements in the light most
favorable to Plaintiff, she states a claim upon which relief can be
granted and Defendants’ Motion is should be denied.

"Every person may freely speak, write and publish his
sentiments on all subjects, being responsible for the abuse of
that right; * * *" (Emphasis supplied.) Even the freedom oi
the press has its limitations. Blount v. T.D. Publishing Corp.,
77 N.M. 384, 388, 423 P. 2d 421 (1966) citing N.M. Const. art.
2, sec. 17. Constitutional rights of freedom of press, right of
privacy, are all relative and not absolute. U.S.C.A. Const.
Amends. 1, 4; Const. art. 2, § 17. The framers of our
constitution, federal and state, were cognizant of the right of an
individual to privacy and sought to prevént unreasonable
intrusion, Trupiano v. United States, 334 U.S. 699, 68 S.Ct.
1229, 92 L.Ed. 1663. Ms. Schuler freely admits to giving
interviews to People Magazine and the Washington Post. The
purpose of which was to inform the public about people, like
her, who suffered from gender reversal, a birth defect, not for —
the purposes of providing a dog and pony show.

Publication of private facts invasion of privacy involves
the publication of true but intimate or private facts about the
plaintiff, such as matters concerning the plaintiffs sexual life or
health. Moore, 77 N.M. at 383.

One who gives publicity to a matter concerning the
private life of another is subject to liability to the other
for invasion of his privacy, if the matter publicized is of
a kind that

(a) would be highly offensive to a reasonable
person, and

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App. 81

(b) is not of legitimate concern to the public. See
Restatement (Second) of Torts § 652 D at 383

Defendants’ offending article publicized facts about
Schuler's sex change, a topic that would be highly offensive to
a reasonable person and of no legitimate concern to the public.
Certainly Defendants would not suggest that Schuler's sex
change was of a legitimate concern to the reading public of
Business Week Magazine. The legitimate concern should have
been that two consents had been signed by Eleanor Schuler, a
person, not that they were signed by Eleanor Schuler, the
transsexual who underwent a sex change. In fact, the offending
article states that one consent was signed by John Huminik and
the other by Eleanor Schuler. That is patently false. Both
consents were signed by Eleanor Schuler. Schuler hid nothing.

Complaint paragraphs (b), (j), (k), (m), (q), (u), (v), (w),
(aa), (ad), (af), and (aj) all make reference to Schuler's sex
change, transsexualism, her prior sex as John Huminik. All of
which are private facts of no legitimate concern to anyone but
Schuler, and none of which are the least bit relevant to the issue
of Eleanor Schuler signing both consent decrees. See Exhibit 1.

Plaintiff concedes that she “pulled back the curtain"
when she provided interviews for the Washington Post and
People magazine. The limited purpose of which was to inform
people about gender reversal. Curtains open and curtains close.
",..once a matter has become newsworthy how long does it
continue to be newsworthy so that an individual may have no
respite from the glare of unsought notoriety. Blount v. TD
Publishing, 77 N.M. 384, 423 P.2d 421 (1966). Schuler
assumed the mantle of a private citizen by moving to a small
town where no one knew her and all publicity ceased. Where

= eet ae

App. 82

the individuals right of privacy is concerned and where the right
of the public to be informed is involved, the question of fact
should be resolved by the trier of facts. Id. Defendants’ motion
should be denied.

INFLICTION OF EMOTIONAL DISTRESS

In order to state a claim for intentional infliction of
emotional distress Plaintiff must show that Defendants’ conduct
was extreme, outrageous, and done intentionally or recklessly
causing her severe emotional distress. See Hakkila v. Hakkila,
112 N.M. 172, 175, 812 P.2d 1320, 1323 (Ct. App. 1991).
Defendants’ conduc? referenced in Plaintiff's Complaint and this
Response clearly establish a claim for intentional infliction of
emotional distress. Defendants’ portrayal of Plaintiff in the
offending article. its failure to check facts such as whether the
SEC knew that Plaintiff had changed her name or sex, and other
items referenced herein constitute the type of outrageous
conduct that this tort was meant to address.

As noted above, at this stage of the proceedings,
Plaintiffs’ allegations in her Complaint and related pleadings
must be taken as true. Under this standard, Plaintiff has
sufficiently plead a claim for intentional infliction of emotional
distress and should be permitted to present evidence in support
of this claim. Defendants’ Motion should be denied.

App. 83

The Defendants interfered with her present and
prospective business relations by "maliciously" publishing an
article that "caused a chilling effect within the business
community." Complaint §§ 66-81. Intentional interference,
whether with existing or prospective contracis, may be
accomplished by improper means or with improper motive.
Knight v. Snapp-On Tools Corp., 3 F. 3rd 1398, 1401 (10th
Circuit 1993.). As the defendants did defame Schuler, as well
as invade her privacy and commit the tort of outrage against her,
the interference with contractual relations count is actionable, as
there is basis for finding that the Defendants’ conduct was
improper. See, e.g. Redco Corp v. CBS, Inc., 758 f.2d 970, 973
(3rd Cir.), cert. denied, 474 U.S. 843 (1985).

Additionally, the Defendants published the article with
an improper motive. In the matter at hand, the Defendants did
not speak truthfully about matters of public concern, nor did
they express opinions based on accurately stated facts. Instead
the Defendants published information about Schuler which was
false. Complaint { 13a. - 13am. Plaintiff has stated a claim
upon which relief can be granted and Defendant's motion should
be denied.

WHEREFORE, for the foregoing reasons, Plaintiff
respectfully requests that the Court deny Defendants’ Motion to
Dismiss in its entirety and enter an order requiring Defendants
to properly answer and respond to the allegations in Plaintiffs
Complaint, and permit this case to proceed to trial on the merits.

App. 84
Respectfully Submitted,

_Is/
Donna Trujillo Dodd
509 Roma NW
Albuquerque, NM 87102
(505) 243-5060 |
Attorney for Plaintiff

App. 85
APPENDIX G
; UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
ELEANOR SCHULER,
Plaintiff/Appellant,
v. No. 97-2225

(Filed September 9, 1997)

THE MCGRAW-HILL COMPANIES, INC.,
including BUSINESS WEEK, an
unincorporated division or subsidiary of THE
MCGRAW-HILL COMPANIES, INC., a
New York Corporation, BUSINESS WEEK
ONLINE, GARY WEISS, individually and as
employee of THE MCGRAW-HILL
COMPANIES, INC.,and MICHAEL
SCHROEDER, individually and as employee of
THE MCGRAW-HILL COMPANIES, INC.,
Defendants/A ppellees.

On Appeal from the United States
District Court for the
District of New Mexico

The Honorable Santiago Campos
District Judge

_D.C. No. CIV 96-0292 SC/RLP _
APPELLANT'S OPENING BRIEF

App. 86

Kear sobs
ELEANOR SCHULER
2201 Spruce Needle Rd.
Rio Rancho, NM 87124
(505) 892-2189

Pro Se for Plaintiff/Appellant

STATEMENT REGARDING ORAL ARGUMENT
Appellant desires oral argument.

App. 87

L TABLE OF CONTENTS

STATEMENT REGARDING ORAL

ee Se cs ee nds 86
TABLE OF AUTHORITIES ................ 9}
x Federal Statutes and Rules 91
2. United States Supreme Court Cases ..... 91
3. Tenth Circuit Authorities ............ He
4. Other Federal Authorities ............. 92
5. New Mexico Authorities ............ 92-93

a. New Mexico Statutes .......... 92
b. New Mexico Decisions ......... 92
6. Authorities from Other States .......... 93
7 NS ins bec enue 93
PRIOR OR RELATED APPEALS ........... 93
STATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION ....... 94
STATEMENT OF ISSUES PRESENTED

ua cbse ees 95

1. Whether the trial court erred by granting
McGraw-Hill’s motion to dismiss ....... 95

STATEMENT OF THE CASE ............ 95-97

1. i een cennenes 95

2. Course of Proceedings ............... 95

App. 88
3. Trial Court Disposition ............... 97
4 Statement of Relevant Facts ........ 97-104
G. SUMMARY OF ARGUMENT ............. 104
#~ ARIF ecsce esi eee a ee 105-135
1 APPELLATE REVIEW
ST A aes en have cuka 105-106
z THE TRIAL COURT ERRED BY
GRANTING MCGRAW-HILL'S
-~ MOTION TO DISMISS .......... 105-135
a. THE TRIAL COURT
FAILED TO VIEW THE
PLEADINGS, AS TRUE, IN
FAVOR OF SCHULER ....... 106

(1) Trial Court's Obligation .. 106

SCHULER STATED A VALID
CLAIM FOR DEFAMATION .. 106

(1) Defamation Elements . 106-107
(2) McGraw-Hill's Article

SCHULER STATED A VALID
CLAIM FOR FALSE LIGHT
INVASION OF PRIVACY . 122-131

(1) False Light Elements . 122-123

SCHULER STATED A VALID
CLAIM FOR PUBLICATION

OF PRIVATE FACTS

INVASION OF PRIVACY ..... 131

(1)

(2)

Elements of Claim

for Publication of
Ea 131
McGraw-Hill Published

Private Facts About

Schuler, Invading her

| ee 131

SCHULER STATED A VALID
CLAIM FOR INTENTIONAL
INFLICTION OF

EMOTIONAL DISTRESS . . 132-133

(1)

(2)

Elements of Intentional
Infliction of Emotional
0 ERA 132-133

App. 90
£ SCHULER STATED A VALID

CLAIM FOR INTERFERENCE
WITH CONTRACTUAL
RELATIONS/PROSPECTIVE
ADVANTAGE ........... 133-135
(1) Elements of Interference
with Contractual
Relations/Prospective
Advantage ......... 133-134
(2) McGraw-Hill
Interfered with
Schuler’s Contractual
Relationships and
Prospective
Advantage ......... 134-135
ee we RE Perr eT er TT ee rerer 135
STATEMENT REGARDING ORAL
ps ee Seer ere eee 86, 136
CERTIFICATE OF SERVICE .............. 136
ATTACHMENTS

1. Business Week Article ...... (See Lodging)

App. 91

TABLE OF AUTHORITIES

Statute/Case Page

F Statut R
28 U.S.C. §§ 1331, 1332, 1343(a)(3), and 1441 ....... 94
SFG: TE ST oo a. 109
EI on oC ac dic 70% Cian de ok cane 94
Ls 4 GRR Rn St nee nape 105

ni tes Supre Cases

Gertz v. Welch, Inc.. 418 U.S. 323 (1974) ........... 104
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) . 107
Rosenblatt v. Baer, 383 U.S. 75 (1966) ......... 104, 107

Tenth Circuit Authorities
Gagan v. Norton, 35 F.3d 1473 (10th Cir. 1994),
cert. denied, 115 S. Ct. 1175 (1995) ............... 105
Jojola v. Chavez, 55 F.3d 488 (10th Cir. 1995) ....... 105
Lafoy v. HMO Colorado, 988 F.2d 97 (10th Cir. 1993) . 106.
Noland v. McAdoo, 39 F.3d 269 (10th Cir. 1994) ..... 105

App. 92

Williams v. Meese, 926 F.2d 994 (10th Cir. 1991) ..... 105
Other Federal Authorities

‘ve Digital Eauio.. ] 0 Tect

Inc., 597 F. Supp. 983 (N.D. Ohio 1984) ............ 106

Leyba v. Renger, 874 F. Supp. 1218 (1994).......... 134
New Mexico Authorities

New Mexico Statutes

WEDGE, CS Ree G8 UES oes Séedecedcacaccnaes 107

Rae, Gee Pe 8s 6 6S Sed eccnee ékéuesebeaoones 107

New Mexico Decisions

Andrews v. Stallings, 119 N.M. 478,

892 P.2d 611 (Ct. App. 1995) ..............5. 111, 112

Dough v. Adventist Health Systs., Inc.,

108 N.M. 806, 780 P.2d 627 (1989) ............... 134

Hakkila v. Hakkila, 112 N.M. 172, 812 P.2d 1320

CR Ri Ma Tie Coss BOs utk brates eadkanat 132

Kutz v, Independent Pub. Co:, Inc., 97 N.M. 243,

638 P.2d 1088 (Ct. App. 1981) ..............0000. 107

App. 93

Marchiondo v. Brown, 98 N.M. 394,
ES 107

Moore v. Sun Publishing Corp., 118 N.M. 375,

881 P.2d 735 (Ct. App.), cert. denied,
To | eee re 123, 131

Authorities from Other States

Bindrim v. Mitchell, 92 Cal. App. 3d 61,
155 Cal. Rptr. 29, cert. denied, 444 U.S. 984 (1979) ... 107

Jonap v. Silver, 1 Conn. App. 550, 474 A.2d 800
Ee ee 122

Larsen v. Philadelphia Newspapers, Inc.,
375 Pa. Super. 66, 543 A.2d 1181 (Pa. Super. Ct.),
appeals denied, 552 A.2d 251 and 552 A.2d 252

and 552 A.2d 968 (1988), cert. denied,
EEE eee 122
Other Authorities

L. Eldridge, The Law of Defamation § 53 (1978) ...... 104
Restatement (Second) of Torts §652D............. 131
Restatement (Second) of Torts § 652E cmt.b ........ 12.2
Rodney A. Smolla, Law of Defamation

RE re 123

THERE ARE NO PRIOR OR

RELATED APPEALS IN THIS CASE

|

App. 94

IL STATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION

The United States District Court for the District of New
_ Mexico (trial court) had subject matter jurisdiction over this
matter pursuant to 28 U.S.C. Sections 1331, 1332, 1343(a)(3),
and 1441. On February 5, 1996, Plaintiff/Appellant Eleanor
Schuler (Schuler) filed her Complaint and Demand for Jury Trial
in this case in New Mexico's Thirteenth Judicial District Court.
Aplt. App., 1-17. On March 4, 1996, Defendants/Appellees
McGraw-Hill Companies Inc., including Business Week and
Business Week Online (McGraw-Hill), and its employees Gary
Weiss (Weiss) and Michael Schroeder (Schroeder) filed a Notice
of Removal seeking to have the case removed to the trial court
on grounds that the parties were diverse; with Schuler residing
in New Mexico, McGraw-Hill a foreign corporation, and Weiss
and Schroeder living outside New Mexico. (in this brief
"McGraw-Hill" refers to Defendants/Appellees McGraw-Hill,
Weiss and Schroeder, unless Weiss and Schroeder are
individually referenced). Aplt. App., 18-40. McGraw-Hill then
filed a Notice of Filing Motion in Lieu of Answer. Aplt. App.
41.

The Tenth Circuit Court of Appeals (Tenth Circuit) has
jurisdiction over this matter under Federal Rule of Appellate
Procedure 3. On June 11, 1997, the trial court entered a
Memorandum Opinion and Order granting McGraw-Hill's
Motion to Dismiss and an Order of Dismissal. Aplt. App., 225-
251. The Court's Orders disposed of all claims with respect to
the parties in this case. Schuler timely filed a Notice of Appeal
on July 10, 1997. Aplt. App., 252-253.

App. 95

Ii. STATEMENT OF ISSUES
PRESENTED FOR REVIEW

Schuler raises the following issues on appeal:

1. Whether the trial court erred by granting McGraw-Hill's
Motion to Dismiss.

IV. STATEMENT OF THE CASE
A. Nature of the Case

This action arose when McGraw-Hill published,
produced, authored, edited, investigated, researched, printed,
and distributed a four (4) page article appearing in Business
Week magazine which included tortious statements regarding
Schuler's personal, private and business affairs. Based on that
tortious article, Schuler brought this action against McGraw-Hill
in New Mexico's Thirteenth Judicial District Court for
defamation, invasion of privacy, prima facie tort, outrageous
conduct, interference with advantageous relations, and
intentional infliction of emotional distress. Aplt. App., 1-17.

B. Course of the Proceedings

McGraw-Hill sought to remove the case to the trial
court on March 4, 1996. Aplt. App., 18-40. In lieu of filing an
Answer, on March 8, 1997, McGraw-Hill filed a motion
package including: 1) McGraw-Hill's Motion for Dismissal or
Alternatively for More Definite Statement and supporting brief,
2) .chuler's Response to Motion for Dismissal or Alternatively
for More Definite Statement; and 3) McGraw-Hill's Reply Brief
in Support of Defendants['] Motion for Dismissal or
Alternatively for More Definite Statement. Aplt. App., 43-71.

App. 96

On April 18, 1997, Schuler filed a motion package including: 1)
Schuler's Motion to Remand to State Court and supporting
Memorandum Brief; 2) Defendant['] Response to Motion for
Remand to Sta2e Court; and 3) Schuler’s Reply Supporting
Plaintiffs Motion for Remand to State Court. Aplt. App., 72-
111.

On October 9, 1996, the trial court entered a
Memorandum Opinion and Order addressing Schuler’s Motion
for Remand to State Court and McGraw-Hill's Motion for
Dismissal or Alternatively for More Definite Statement. The
trial court denied Schuler’s Motion for Remand to State Court
ruling that it had jurisdiction over the case. Also, the trial court
denied McGraw-Hill's Motion to Dismiss Schuler's Complaint,
but required Schuler to amend her Complaint to identify specific
statements which formed the basis of her claims. Aplt. App.,
112-124.

On October 23, 1996, Schuler filed an Amended
Complaint for Damages (Amended Complaint) against
McGraw-Hill seeking damages for defamation, invasion of
privacy, prima facie tort, intentional infliction of emotional
distress, interference with contractual relations, and interference
with prospective advantage. Aplt. App., 125-153. On January
6, 1997, McGraw-Hill again filed a Motion to Dismiss (Motion)
in lieu of filing an answer to Schuler's Amended Complaint.
Aplt. App., 155. At that time a motion package was filed which
included: 1) McGraw-Hill's Motion to Dismiss and supporting
brief; 2) Schuler’s Response to Motion to Dismiss; and 3)
McGraw-Hill's Reply Brief in Support of Defendants[‘] Motion
to Dismiss. Aplt. App., 155-224. No initial scheduling
conference was held in this case and, in accordance with District
Court of New Mexico Local Rule (Civil) 26.4(a), discovery was
prevented from beginning in this case.

App. 97
Gi Trial Court Disposition

On June 11, 1997, the trial court entered a
Memorandum Opinion and Order and an Order of Dismissal
granting McGraw-Hill's second Motion to Dismiss. Aplt. App.,
225-251. Schuler timely filed a Notice of Appeal on July 10,
1997. Aplt. App., 252.

D. Statement of Relevant Facts

On or about September 12, 1994, Eleanor Schuler was
living as a private person in Rie Rancho, New Mexico. Aplt.
App., 125, 4 1; 126,411. At that time, she was employed as a
corporate officer with Printron, Incorporated, and enjoyed a
good reputation. Aplt. App. 3, § 12.

Also, on or about September 12, 1994, McGraw-Hill
published, produced, distiibuted, printed, authored, edited,
researched, and investigated a four (4) page article which
appeared in its Business Week magazine, alternately identified
as "CHANGE SEX, CHANGE THE PAST: BEFORE BECOMING
PRINTRON CEO AS ELEANOR SCHULER, JOHN HUMINIK JR.
RAN TWO COMPANIES THE SEC ACCUSED OF FRAUD.
WHO KNEW?" and "DID THE AMEX TURN A BLIND EYE TO
A “SHOWCASE' STOCK?" Aplt. App., 126, § 12; 143, 144.
McGraw-Hill also distributed and made available its article over
the internet. Aplt. App., 148-153. The article continues to be
available and accessible, world-wide, through that medium.

The article contained the following items and statements
referenced in Schuler's Amended Complaint and Schuler's
Response to Motion to Dismiss (Kesponse), which for
convenience of reference, are lettered as in Schuler's Amended
Complaint:

App. 98

Photograph of Plaintiff in black and white in
contrast to all other surrounding color
photographs, accentuating Ms. Schuler's
femininity depicting close up of Plaintiff in social
attire and social setting and pose while other
pictures of business people are photographed in
professional business attire and professional
settings. Aplt. App., 127, 143, column 2.

Photograph caption "CHANGE SEX, CHANGE
THE PAST: BEFORE BECOMING PRINTRON
CEO AS ELEANOR SCHULLER, JOHN
HUMINIK, JR. RAN TWO COMPANIES THE
SEC ACCUSED OF FRAUD. WHO KNEW 2?”
Aplt. App., 127, 143, column 2.

"DID THE AMEX TURN A BLIND EYE TO A
‘SHOWCASE’ STOCK ?" Aplt. App., 144, title.

"Finance INVESTIGATIONS[.]" Aplt. App.,
127, 144 heading.

"The bizarre Printron case shows how the
exchange too often ignores the most glaring
signs of trouble." Aplt. App., 127; 143, column
1 bottom; 144, subtitle.

But she didn't like to talk about that." Aplt.
App., 127, 144, column 1, { 3.

App. 99

"CHECKERED RECORD." Aplt. App., 127,
144, { 4 subheading.

“there was a stain on her record. She had twice
been sued in Federal Court by the SEC, twice
agreeing to injunctions, without admitting or
denying guilt, that prohibited her from violating
the securities laws. One of the injunctions was
known to the Amex when it approved Printron's
listing on the ECM. The other was not." Apit.
App, 127, 144, column 2, { 1.

"Eleanor Schuler had two records of alleged
securities law transgressions-one as a woman,
and one as a man. In fact, the name “Eleanor
Schuler’ was one that she had made up out of
thin air.” Aplt. App., 127-28, 144, column 2, §
y 5

"Before a sex-change operation in the late
1970s, she had used the name her parents gave
her[.]" Apit. App., 128, 144, column 2, § 2.

"Her earlier SEC record, and her change in
gender were concealed by Printron not only
from Barnes but from the Amex' “blue ribbon’
panel of Wall Street notables that had
handpicked the 23 ECM companies. Schuler
also hid her previous identity, and the injunction,
from securities regulators in New [Y]ork, in a
“sunshine law’ filing 14 months before the day
the balloons fell on the Amex floor (box)." Apt.
App., 128, 145, column 2, § 2-column 3, { 1.

App. 100

"And the Amex is still reeling from the ECM
imbroglio, even though its greatest
embarrassment, Printron, has never been publicly
aired." Aplt. App., 128, 144, column 3, § 2.

Insert photographs of [Schuler] and caption "HE
DID/SHE DID: PRINTRON'S PAST . . . The
SEC may have thought they were two separate
people.” Aplt. App., 128, 144, columns 2-3,
highlighted box.

"Schuler/Huminik affair{]" Aplt. App., 128,
145, column 1, § 1.

"Printron was little more than a fraud - a ‘sting,’
as the suit puts it[.]" Aplt. App., 128, 145,
columns 2-3, § 2.

“How did Printron get past the gatekeepers at
the Amex? Could the Printron fiasco be
repeated?" Aplt. App. 128, 145, column 3, { 1.

"A good place to address these questions is at
the very beginning-in the story of Eleanor
Schuler’s previous manifestation, John Huminik,
Jr[.]" Aplt. App., 128, 145, column 3, § 2.

"He was a double agent for the FBI and the
Soviet government.” Aplt. App., 128, 145,
column 3, { 3.

"As recounted in his slickly written 1967
book[{]" Aplt. App., 128, 145, column 3, { 4.

App. 101

“Neither the book nor the double agent career
were mentioned in any of Printron's filings with
investors and regulators." Aplt. App., 128-29,
145, column 3, ¢ 5.

"[]We have nothing against transsexuals[']"
Aplt. App., 129, 146, column 1, § 1.

“At issue is not her sex change, but rather the
extent to which her concealment of that change
masked other things." Aplt. App., 129, 146,
column 1, q 1.

“The trouble . . . arises whenever Schuler’s pre-
Schuler activities are mentioned in Printron's
public disclosures. Time after time, they refer to
Schuler as a ‘she’- even when discussing
positions held when Schuler was a “he.” Aplt.
App., 129, 146, column 1, § 2.

“Moreover, the filings say that Schuler was a
“self-employed technology and corporate
consultant’ from 1966 to 1991. In fact, Schuler,
as Huminik, was president of General Industrial
Corp. [GIC] and General Enterprises Corp.,
which allegedly defrauded investors during the
1970s." Aplt. App., 129, 146, column 1, 4 2-3.

“Huminik repeatedly lied to investors about
GIC. Huminik agreed to a permanent injunction
barring him from making untrue statements, and
otherwise defrauding investors, in the future.
He agreed to the injunction without admitting or
denying the SEC's allegations." Aplt. App., 129,

ab.

ac.

App. 102
146, column 1, { 3.

"Was Schuler being shy-or was she improperly
misleading investors?" Aplt. App., 129, 146,
column 1, { 4.

"Schuler was within her rights to hide her
previous gender and to not disclose the 1976
injunction, because of the SEC rule requiring
disclosure only for five years.” Aplt. App., 129,
146, column 1, { 4.

"Zimmerman maintains that a previous
injunction is a “material event’ that must be
disclosed beyond the five-year period set by the
rules." Aplt. App., 129, 146, column 1, 4.

"the next Huminik/Schuler exploit" Aplt. App.,
129, 146, column, 1, { 4.

"John Huminik was no longer exhibiting a James
Bond persona. “Marine blue shadow haloes the
eyelids,’ . . . The Post went on to describe the
sex change and, in graphic detail . . . None of
this would amount to a hill of beans if Eleanor
Schuler, as Printron CEO, hadn't fallen afoul of
the SEC." Aplt. App., 129-30, 146, column 1,

q 5.

"The Huber-Schuler ties were shrugged off by
the blue-ribbon panel. “We were assured by the
Amex staff that the issue had been resolved[.]""
Aplt. App., 130, 146, column 2, { 2 - column 3,
q 1.

aj.

App. 103

“But Hamarat and another former panel
member[] . .. now say that the panel didn't
know that Eleanor Schuler used to be John
Huminik-or that Schuler consented to not one
but two injunctions by the SEC. If they had
known, they say, Printron's listing would never
have been approved.” Aplt. App., 130, 146,
column 3, § 1.

"The SEC's mild treatment of Schuler in 1991
raises yet another issue: Did the SEC know in
1991 that Schuler was Huminik?" Aplt. App.,
130, 146, column 3, ¢ 2.

"One explanation might be that the SEC felt so
much time had passed that it would not pursue
a criminal contempt action against Schuler.”
Aplt. App., 130, 146, column 3, § 2.

“Huminik/Schuler matter" Aplt. App., 130, 146,
column 3, ¥ 2.

"If the SEC didn't know that the Eleanor Schuler
of 1991 was the John Huminik of 1976-and the
Amex surely didn't know-there was one possible
explanation. The Central registry of the
National Association of Securities Dealers . . .
has John Huminik on its data base. And Eleanor
Schuler too." Aplt. App., 130, 146, column 3,
q 3.

“But they are listed as two separate people, with
one ‘incident’ to his name and one to hers.”
Aplt. App., 130, 146, column 3, § 3.

App. 104

al. "A NASD spokesman notes that more detailed
information, such as social security numbers, is
only maintained for NASD members-not
corporate officers who fall afoul of the SEC.”
Aplt. App., 130, 146, column 3, 3.

am. “But the Printron disaster and the miserable
performance of the other ECM companies make
it plain that the Amex hasn't gone far enough."
Aplt. App., 130-31, 147, column 1, § 4.

Vv. SUMMARY OF ARGUMENT

For over one thousand years, a person's good name and
reputation have been recognized as important interests requiring
legal protection. L. Eldridge, The Law of Defamation § 53, pp.
293-294 (1978). Schuler's right to protect her own good name
and reputation "from unjustified invasion and wrongful hurt
reflects no more than our basic concept of the essential dignity
and worth of every human being -- a concept at the root of any
decent system of ordered liberty." Rosenblatt v. Baer, 383 U.S.
75, 92 (1966). This right is "a basic of our constitutional
system[]" and is entitled to equal recognition by the court. Id.
Private persons, such as Schuler, are more vulnerable to injuries
caused by defamation and also are more deserving of recovery.
Id. at 93-94. Gertz v. Welch, Inc.. 418 U.S. 323, 344 (1974).

The trial court failed to give equal import and deference
to laws meant to protect Schuler's reputation, when it reviewed
the article's statements individually and the article as a whole.
When properly viewed, Schuler's Amended Complaint
adequately states claims and causes of action for defamation,
false light invasion of privacy, intentional infliction of emotional
distress, interference with contractual relations, and interference

ONO Pc ee Lee Oe DER meee Mee Te MONT RE eT

App. 105

with prospective advantage. Aplt. App., 125-153, 1-17.
McGraw-Hill's tortious statements irreparably damaged
Schuler’s business and private life. Under these circumstances,
the trial court's summary dismissal of Schuler’s Amended
Complaint was highly improper and should be reversed on
appeal.

VI. ARGUMENT
A. APPELLATE REVIEW STANDARD

In reviewing the trial court's grant of McGraw-Hill's
second Motion to Dismiss under Federal Rule of Civil
Procedure 12(b)(6), the appellate court reviews the trial court's
decision "de novo.” Jojola v. Chavez, 55 F.3d 488, 490 (10th
Cir. 1995); Gagan v. Norton, 35 F.3d 1473, 1474 n.1 (10th Cir.
1994), cert. denied, 115 S. Ct. 1175 (1995). The appellate
court must accept as true, all well pleaded allegations of the
complaint and "construe them in the light most favorable to the
plaintiff." Id.; Gagan, id. (quoting Williams v. Meese, 926 F.2d
994, 997 (10th Cir. 1991)). Dismissal is only proper when a
plaintiff can prove no set of facts to support a claim for relief.

Jojola, id.; Noland v. McAdoo, 39 F.3d 269, 273 (10th Cir.
1994).

B. THE TRIAL COURT ERRED BY GRANTING
MCGRAW-HILL'S MOTION TO DISMISS

Despite long standing historical interest in protecting
Schuler's reputation and good name, the trial court failed to
adhere to the applicable standard of review favoring Schuler.
Instead, the trial court viewed the pleadings to Schuler's
detriment and failed to fairly and objectively evaluate the
allegations of her Complaint and Amended Complaint. For

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reasons discussed below, the trial court's error should be
corrected on appeal and its decision should be reversed.

1. THE TRIAL COURT FAILED TO VIEW
THE PLEADINGS, AS TRUE, IN FAVOR
OF SCHULER

(a) Trial Court's Obligation

In deciding McGraw-Hill's Motion to Dismiss, the trial
court was obligated to accept as true all well pleaded allegations
in the complaint and to construe them in the light most favorable
to Schuler. Innovative Digital Equip., Inc. v. Quantum Tech.,
Inc., 597 F. Supp. 983, 988 (N.D. Ohio 1984). Also, the trial
court was obligated to deny McGraw-Hill’s Motion if any legal
theory existed for recovery. The trial court should not have
granted McGraw-Hill's Motion absent a finding, beyond doubt,
that Schuler could prove no set of facts that would entitle her to
judgment. See Lafoy v. HMO Colorado, 988 F.2d 97, 98 (10th
Cir. 1993). The trial court erred by failing to adhere to the
above requirements in deciding McGraw-Hill's Motion and its
decision should be reversed.

2. SCHULER STATED A VALID CLAIM
FOR DEFAMATION

(a) Defamation Elements

To prove her defamation claim, Schuler is required to
show that McGraw-Hill published a false statement of fact,
concerning Schuler, which was defamatory, was understood to
be defamatory by the recipients of the statement, and which
caused actual injury to Schuler’s reputation. Schuler also must
show that McGraw-Hill either knew the communication was

App. 107

false or negligently failed to recognize that it was false or acted
with malice. N.M. UJI § 13-1002 to 13-1011 (1997).

In determining whether a communication is or contains
a Statement of "fact" or “opinion,” the fact finder must consider:
"(A) The entirety of the communication and the context in
which the communication was made; and (B) whether
reasonable persons would be likely to understand the
communication to be a statement of the defendant's opinion or
a statement of fact." Id. at § 13-1004. "[A]n opinion which
implies that it is based upon the existence of undisclosed facts is
the same as a statement of fact." Id. Where a statement alleged
to be defamatory can be interpreted as either fact or opinion,
and the court cannot rule that, as a matter of law, the statement
was not understood as fact, “there is a triable issue of fact for

the jury." Marchiondo v. Brown, 98 N.M. 394, 404, 649 P.2d
462, 472 (1982) (quoting Bindrim v. Mitchell, 92 Cal. App. 3d

61, 155 Cal. Rptr. 29, 39, cert. denied, 444 U.S. 984 (1979)).
Likewise, statements purporting to be opinions often are
understood to be factual statements. See Marchiondo, 98 N.M.
at 401, 649 P.2d at 469. "[WJhere there are implications in the
statement “that the writer has private, underlying knowledge to
substantiate his comments about plaintiff,” and such knowledge
implies the existence of defamatory facts, the statement is
deemed to be factual and not privileged. Kutz v. Independent
Pub. Co., Inc., 97 N.M. 243, 246, 638 P.2d 1088, 1091 (Ct.
App. 1981). In determining whether a statement is “of and
concerning” a person, the statements substance, as opposed to
its form is critical. See Rosenblatt, 383 U.S. at 86; New York

Times Co. v. Sullivan, 376 U.S. 254, 288 (1964).

App. 108

tb) McGraw-Hill's Article Defamed
Schuler

Schuler’s Amended Complaint and Response identified
_ fumerous statements made by McGraw-Hill in its Business
Week article. Aplt. App., 125-153; 182-209. The defamatory
statements included the items listed in Section IV (D) herein
lettered as b, f, h, i, k, n, s, t, u, v, w, Z, ac, ad, ae, af, ag, ai, and
ak. These defamatory statements are discussed below.

b. Photograph caption "CHANGE
SEX, CHANGE The PAST:
BEFORE BECOMING
PRINTRON CEO AS ELEANOR
SCHULER, JOHN HUMINIK, JR.
RAN TWO COMPANIES THE
SEC ACCUSED OF FRAUD.
WHO KNEW?" (Aplt. App.,
143, column 2, top.).

The statement "CHANGE SEX, CHANGE THE PAST"
appeared in the top center of Business Week's index;
prominently displayed to readers. Aplt. App. 143, column 2,
top. This phrase stated as a fact that Schuler was able to change
her past business and other history as a man, by changing her
sex. When viewed in the context of the entire sentence, the
statement further implied that Schuler had some evil motive that
either required or contributed to her decision to change her sex.

McGraw-Hill's article also included the following related
statements regarding the SEC's knowledge or lack of knowledge
of Schuler's past:

App. 109

Before becoming Eleanor Schuler, John Huminik Jr. ran
two companies that the SEC accused of fraud. Later,
she signed another consent decree. The SEC may have
thought they were two separate people. Aplt. App.,

144, highlighted box.

The SEC's mild treatment of Schuler in 1991 raises yet
another issue: Did the SEC know in 1991 that Schuler
was Huminik? Aplt. App., 146, column 3, § 2.

Before the trial court, McGraw-Hill also argued that the SEC's
lack of knowledge of the two consents may be explained due to
the organization of computerized judicial databases by caption.
Aplt. App., 212.

McGraw-Hill's above statements that the Securities and
Exchange Commission (SEC) did not know, or may not have
known, that Schuler was the signatory on a 1976 consent and a
1991 consent are statements of fact capable of being proved or
disproved. Schuler signed both consents after her sex change
and under her current name. Aplt. App., 185, 207-209.
Nevertheless, Schuler had no duty to disclose the prior consent
or her sex change beyond a five (5) year period. See 17 C.F.R.
11 § 229.401(f).

Schuler asserts that the SEC knew she signed both
consents and that McGraw-Hill's statements are false. Her
assertions must be viewed as true for purposes of appeal.

The statement "CHANGE SEX, CHANGE THE PAST"
was not a question. No question mark follows the statement
and an ordinary person would not read it as such. A question
mark did appear following the phrase "WHO KNEW?" That
phrase, when viewed in the context of the preceding sentence,

App. 110

confirmed that Schuler changed her known history as a man by
changing her sex to female. It further implied that Schuler's sex
change effectively deceived others with whom she had business
dealings.

Further, the statement, when viewed in context, implied
that it was based on undisclosed facts or sources, likely
including SEC personnel. Thus, the statement was not an
opinion.

Also, the above statement was not a harmless "tag line."
As noted above, the statement attributed to Schuler improper
motives and painted her as deceptive, dishonest, and immoral,
particularly when viewed in the context of the entire article. A
fair reading of Schuler's Amended Co:nplaint and Response
reveals that she has sufficiently alleged that the above statement
is defamatory and the trial court erred in concluding otherwise.

f. "But she didn't like to talk about
that." Aplt. App., 144, column
1, q 3.

This sentence, particularly when viewed in the context
of the entire article, stated as a fact that Schuler did not like to
talk about her former work with the Federal Bureau of
Investigation (FBI). Aplt. App., 144, column 1, § 3. This
statement can be proven or disproven by testimony from Schuler
and other persons with whom she has discussed her FBI work,
and by other evidence. Schuler claims that the statement is
false. The inclusion or exclusion of details of Schuler's FBI
work in the context of her business dealings, does not indicate
that she did not like to talk about her FBI work and does not
negate the falsity of that statement.

App. 111

In the subject article McGraw-Hill portrayed Schuler as
a deceptive and secretive person who sought to conceal
information about her past. Aplt. App., 143-153, 185, 197-98.
This statement, in conjunction with the remainder of the article,
serves to reinforce McGraw-Hill's false portrayal of Schuler as
deceptive and subjects her to public contempt and hatred or
contempt or ridicule in public estimation. See Andrews v.
Stallings, 119 N.M. 478, 488, 892 P.2d 611, 621 (Ct. App.
1995) (citation and quote marks omitted). Thus, the statement
is false and defamatory to Schuler in this context and the trial
court erred by finding otherwise.

h. "there was a stain on her record.
She had twice been sued in
Federal Court by the SEC, twice
agreeing to injunctions, without
admitting or denying guilt, that
ag prohibited her from violating the
os securities laws. One of the
injunctions was known to the
Amex when it approved
Printron's listing on the ECM.
The other was not." Aplt. App,
144, column 2, § 1.

In the above sentences, the statement "there was a stain
on [Schuler's] record[,]" in conjunction with the statement that
"[o]ne of the injunctions was known to the Amex. . . [t]he other
was not[,]" are defamatory to Schuler. The statement that the
Amex did not know about Schuler's consents can be proven or
disproven. As noted above, Schuler’s consents were a matter of
public record available for examination by Amex and any others
persons or entities. In the context of the entire article,

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App. 112

McGraw-Hill clearly implied that Schuler deceived the Amex by
her sex change. The statement further implied that McGraw-
Hill had undisclosed facts, including information regarding
Amex's knowledge of Schuler. Therefore, the above statement
is false and defamatory to Schuler and the trial court's ruling was
in error.

McGraw-Hill's statement was “of and concerning”
Schuler. McGraw-Hill did not need to specifically name Schuler
because the surrounding circumstances and evidence indicated
that the statement focused on Schuler. See Andrews, 119 N.M.
at 495, 892 P.2d at 628 (J. Hartz, specially concurring).

In the context of the entire article, the statement clearly
indicated that Schuler's deceived the Amex and others through
her sex change. Thus, the statement is false and defamatory and
Schuler stated a valid claim on this point.

i. "Eleanor Schuler had two
records of alleged securities law
transgressions-one as a woman,
and One as a man. In fact, the
name “Eleanor Schuler’ was one
that she had made up out of thin
air." Aplt. App., 144, column 2,
q 2.

The statement that Schuler had one record of securities
transgressions as a man and one as a woman was false. As
stated above, Schuler signed both consents as a female. In the
context of this article, the statement was defamatory because it
implied that Schuler, through her sex change, wrongfully
deceived the SEC into thinking she was two different people or
that she received some inappropriate benefit by virtue of the sex

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App. 113

change. Neither item is true. Further, the organization of
Schuler's prior consents by one particular database does not
render the statement true. The essential "record" is that of the
SEC. McGraw-Hill's depiction of Schuler as having two
"records" under these circumstances is false and defamatory.

The first statement, when coupled with the statement
that Schuler made up her name, leads an ordinary reader to
interpret the statements together to mean that Schuler
wrongfully deceived others by changing her sex and making up
aname. Thus, the statement was defamatory. Whether or not
Schuler’s current name bears an obvious similarity to her former
name, does not indicate that the name was manufactured out of
"thin air." The origin and basis for Schuler’s name are matters
susceptible of being proven or disproven, and are matters of
fact. The trial court erred by finding otherwise.

k. "Her earlier SEC record, and her
change in gender were concealed
by Printron not only from Barnes
but from the Amex’ “blue ribbon’
panel of Wall Street notables
that had handpicked the 23 ECM
companies. Schuler also hid her
previous identity, and the
injunction, from _ securities
regulators in New [Y]ork, in a
“sunshine law’ filing 14 months
before the day the balloons fell
on the Amex floor (box)." Aplt.
App., 128, 145, column 2, § 2-
column 3, § 1.

App. 114

The first statement regarding concealment by Printron
included a reference “of and concerning" Schuler. At the time
the article was published, Schuler was a prominent corporate
officer of Printron and as such, her duties included dealing with
securities filings, investors, and the Amex. Schuler's had an
inseparable relationship with Printron, particularly as discussed
in the context of the article. The article's central focus was on
Schuler's veracity and truthfulness, and how she applied those
negative qualities while working at Printron. Under these
circumstances, the statement falsely portrayed Schuler as
untruthful and deceptive in her business dealings, particularly
her dealings with the SEC. The statement is false and it can be
proven or disproven whether Schuler's prior identity was hidden
from key business persons and entities. Thus, it is a false
statement of fact which forms the basis of a defamation claim.

Likewise, the statement that Schuler herself "hid" her
prior identity is a false factual statement. The New York
Sunshine Law referenced in the article can be interpreted in any
number of ways, and for purposes of appeal, it must be
interpreted in the light most favorable to Schuler. The New
York Sunshine Law cited in the article asks "Has registrant, any
officer, director, or principal or partner . . . ever used or been
known by any other name?" Aplt. App., 145, columns 1 and 3,
highlighted box. This question, when viewed in context, may be
interpreted to refer to names used while a corporate
representative or to names used while filing under New York's
Sunshine Law. The trial court's interpretation of the meaning
and significance of this question and answer, contrary to
Schuler's favor, was error. Whether Schuler "hid" her identity
from New York entities is a matter of fact which can be proven
or disproven. McGraw-Hill's statement defamed Schuler by
again portraying her as deceptive and untruthful The trial court
erred by ruling otherwise.

App. 115

n. “Schuler/Huminik affair[]" Aplt.
App., 128, 145, column 1, 1.

ac. "the next Huminik/Schuler
exploit" Aplt. App., 129, 146,
column, 1, { 4.

ai. “Huminik/Schuler matter" Aplt.
App., 130, 146, column 3, ¢ 2.

All of the above statements, particularly when viewed in
the context of the entire article, reinforced McGraw-Hill's
portrait of Schuler as a deceitful, conniving person who's goal
was to hide her prior identity and/or to confuse those with
whom she conducted business. These images of Schuler were
not true and are defamatory to her in this context.

Ss. "As recounted in his slickly
written 1967 book{]" Aplt.
App., 128, 145, column 3, § 4.

McGraw-Hill's statement that Schuler book's was
"slickly written" falsely implied that Schuler used false and
deceptive practices in her personal and business dealings. As
noted above, the whole premise of the article is that Schuler
actively deceived those with whom she conducted business. In
this context, the statement was untrue and defamatory to
Schuler.

t. “Neither the book nor the double
agent Career were mentioned in
any of Printron's filings with
investors and regulators." Aplt.
App., 128-29, 145, column 3, §
5.

App. 116

This statement falsely implied that Schuler actively
concealed her prior identity from Printron's "investors and
regulators," despite a duty to do so. The implication is false.
As noted above, Schuler had no duty to disclose this
information. The statement is "of and concerning" Schuler
because of her prominent and integral position with Printron.
Whether or not the items were disclosed, does not change the
negative and defamatory implication of the statement.
Defamatory implications are actionable, and this statement falls
into that category. The trial court erred by finding that this

statement did not support a defamation claim.

u. "[JWe have nothing against
transsexuals[‘}" Aplt. App., 129,
146, column 1, { 1.

The above statement, when taken in the context of the
entire article, falsely implied that Schuler's transsexual status
rendered her decep*ive and unworthy of trust. The inclusion of
the statement in the article serves no purpose other than to
reinforce in the reader's mind the illusion that Schuler was
someone evil to be held in contempt. In the context of this
article, the statement is not protected opinion and forms the
basis of a defamation claim.

v. "At issue is not her sex change,
but rather the extent to which
her concealment of that change
masked other things." Aplt.
App., 129, 146, column 1, { 1.

App. 117

This statement is similar to statement k above, in that it
accused Schuler of concealing her prior identity. As noted
above, Schuler did not conceal her identity from her business
contacts. The trial court's cursory treatment of this issue in its
opinion and its failure to view the statement in the manner most
favorable to Schuler constituted reversible error.

w. "The trouble . . . arises whenever
Schuler's pre-Schuler activities
are mentioned in Printron's
public disclosures. Time after
time, they refer to Schuler as a
“she’- even when discussing
positions held when Schuler was
a “he. Aplt. App., 129, 146,
column 1, { 2.

Again, this statement was "of and concerning" Schuler
due to her status with Printron. The statement falsely implied
that Schuler’s corporate disclosures were deceptive and that
Schuler was responsible for the deception. Schuler's past
business experience was listed on corporate disclosures. The
effect of the statements on an ordinary reader is a matter subject
to proof at trial. A fair reading of the statements supports the
view that they are defamatory to Schuler. McGraw-Hill's
mischaracterization of Schuler's history was untruthful and only
served to reinforce the article's premise that Schuler was a
deceptive and untruthful person. The trial court failed to view
this statement and the allegations of Schule. Amended
Complaint in the light most favorable to Schuler and its decision
should be reversed.

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App. 118

z. "Was Schuler being shy-or was
she improperly misleading
investors?" Aplt. App., 129,
146, column 1, { 4.

The above statement of fact was disguised as a question.
However, under these circumstances the statement is reasonably
interpreted as falsely implying that Schuler, in fact, mislead
investors. Further, the statement implied that McGraw-Hill had
undisclosed facts supporting its view that Schuler misled
investors. The implication of McGraw-Hill's statement was
improper and supports Schuler's defamation claim, particularly
when the statement is viewed in the context of the entire article.

ad. "John Huminik was no longer
exhibiting a James Bond
persona. ~Marine blue shadow
haloes the eyelids,’ . .. The Post
went on to describe the sex
change and, in graphic detail . . .
None of this would amount to a
hill of beans if Eleanor Schuler,
as Printron CEO, hadn't fallen
afoul of the SEC.” Aplt. App.,
129-30, 146, column 1, 5.

The statement that "as Printron CEO," Schuler "“f[e]l
afoul of the SEC" was false and misleading. The statements
falsely implied that McGraw-Hill had undisclosed facts
evidencing some wrongdoing by Schuler while she was a
Printron officer. It is a matter of fact, which can be proven or
disproven, whether Schuler violated SEC laws while at Printron.
The trial court's conclusion that the true facts are “irrelevant”

App. 119

was in direct violation of its duty to view the facts in Schuler’s
favor. The trial court's decision should be corrected on appeal.

ae. "The Huber-Schuler ties were
shrugged off by the blue-ribbon
panel. “We were assured by the
Amex staff that the issue had
been resolved[.J"" Aplt. App.,
130, 146, column 2, § 2 -
column 3, { 1.

This statement falsely implied that Huber and Schuler
had "ties," including acting in concert to defraud investors
and/or deceive others. In the context of the article, this
Statement served to ally Schuler with a convicted felon to
enhance McGraw-Hill's portrayal of Schuler as a deceptive and
untruthful person. An ordinary and reasonable interpretation of
this statement, in the context of the entire article, is that Schuler
was actively involved with the felon and that it implied the
existence of undisclosed facts to that effect. Schuler had no
such “ties" with Huber and the statement supports her
defamation claim.

af. "But Hamarat and another
former panel member[] . . . now
say that the panel didn't know
that Eleanor Schuler used to be
John Huminik-or that Schuler
consented to not one but two
injunctions by the SEC. If they
had known, they say, Printron's
listing would never have been
approved."

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App. 120

Aplt. App., 130, 146, column 3,
q1.

In the context of the article, the inclusion of the above
statements falsely implied that Schuler hid her prior identity
from the SEC and the “blue ribbon" panel. As noted, Schuler's
identity was known to the SEC and was available to “blue
ribbon’ panel members as a public record. McGraw-Hill's
inclusion of this statement furthered its own interest in
tarnishing Schuler’s reputation by painting her as deceitful. The
statement also implied that McGraw-Hill had undisclosed facts
evidencing lack of knowledge of Schuler’s past, on the part of
other panel members and Amex representatives. Thus, the
statement is not a fair characterization or opinion. The
statement is defamatory and Schuler has stated a valid claim.

ag. "The SEC's mild treatment of
Schuler in 1991 raises yet
another issue: Did the SEC
know in 1991 that Schuler was
Huminik?" Aplt. App., 130,
146, column 3, { 2.

The statement that the SEC treate* Schuler mildly, in
conjunction with the query as to the SEC's knowledge of
Schuler’s prior identity, continued McGraw-Hill's devastating
attack on Schuler's reputation. It is a matter of fact, that can be
proven or disnroven whether the SEC knew of Schuler’s prior
identity and her consent. The article's repeated assertion that
Schuler "hid" her identity, was false, and falsely implied that
Schuler was guilty of wrongdoing. Thus, the statement qualifies
as actionable under Schuler’s defamation claim.

App. 121

ah. "One explanation might be that
the SEC felt so much time had
passed that it would not pursue a
criminal contempt action against
Schuler." Aplt. App., 130, 146,
column 3, § 2.

Again, this statement exemplified McGraw-Hill's false
accusations that Schuler "hid" her prior identity and consent
from the SEC. The statement further implied that Schuler
should be subject to criminal penalties for her purported crimes,
and the existence of undisclosed facts which would support such
criminal sanctions. In this context, the statement is false,
defamatory, and actionable by Schuler.

ak. “But they are listed as two
separate people, with one
“incident to his name and one to
hers." Aplt. App., 130, 146,
column 3, § 3.

McGraw-Hill's reference to Schuler’s consent records
contained in a National Association of Securities Dealers
(NASD) database was defamatory in the context of this article.
As noted, the article created in its reader's minds the belief that
Schuler was a deceptive person who "got away" with
wrongdoing, at least for a period of time. A reading of the
entire article shows the full extent of the negative and
defamatory image created in reader's minds. This statement
reinforced that image, falsely, and in a manner that defamed
Schuler.

A fair and impartial reading of the above statements,
individually and in the context of the entire article, leave the

Aye A ee ge ite |
’ Y

ADD RE POR EIS

App. 122

reader with the clear perception that the article is defamatory to
Schuler. The statements do not qualify as “opinion,” nor are
they harmless word choices. Instead, McGraw-Hill's words
were chosen with care to inflict the greatest harm to Schuler's
most precious asset, her reputation. Thus, the trial court erred
in dismissing Schuler’s claims and its ruling should be reversed
and corrected on appeal.

3. SCHULER STATED A VALID CLAIM
FOR FALSE LIGHT INVASION OF
PRIVACY

a. False Light Elements

To establish a claim of false light invasion of privacy,
Schuler only is required to show that she was "given
unreasonable and highly objectionable publicity that attributes to
[her] characteristics, conduct or beliefs that are false, and so is
placed before the public in a false position." Restatement
(Second) of Torts § 652E cmt. b, at 395. "[A] false light claim
may be established where true information is published if the
information tends to imply falsehoods. Larsen v. Philadeiphia

Newspapers, Inc., 375 Pa. Super. 66, 543 A.2d 1181, 1189 (Pa.
Super. Ct.), appeals denied, 552 A.2d 251 and 552 A.2d 252
and 552 A.2d 968 (1988), cert. denied, 489 U.S. 1096 (1989).
See also Jonap v. Silver, 1 Conn. App. 550, 474 A.2d 800, 806
(Conn. Ct. App. 1984) (jury verdict sustained where there was
evidence that defendants caused letter to be published in a
magazine that attributed to plaintiff views that were not his own
and that there was a major misrepresentation of his character,
history, activities, or beliefs).

Further, New Mexico recognizes the tort of defamation
by implication in which a “reputational injury caused by a

7

App. 123

communication may result not from what is said but from what
is implied." Moore v. Sun Publishing Corp., 118 N.M. 375,
381, 881 P.2d 735, 741 (Ct. App.), cert. denied, 118 N.M. 430
(1994) (quoting Rodney A. Smolla, Law of Defamation §
4.05[1], at 4-17 (1994)).

b. McGraw-Hill's Article Placed Schuler
in a False Light

The statements outlined by Schuler's Amended
Complaint, Response, and in Section IV (D) herein as statement
of fact letters a-c, e-i, k, m, t, v-y, and ag, gave Schuler
“unreasonable and highly objectionable publicity that attributed
to [her] characteristics, conduct or beliefs that were false," and
which placed her before the public in a false position. See
Restatement (Second) of Torts § 652E cmt. b, at 395. The
above statements were made in the context of an internationally
circulated "business" periodical, in its "Finance" section. Aplt.
App., 144. The article appeared within a "Finance" subsection
entitled "Investigations." Id. This context was one in which a
reasonable person would expect to find statements of fact and
in which reasonable persons would interpret statements as
factual. Further, the magazine targeted business professionals
and others associated with and/or interested in business matters,
such as those with which Schuler was involved. It is in this
context that the offending article must be evaluated. Statements
supporting Schuler’s false light claims are discussed below.

a. Photograph of Plaintiff in black
and white in contrast to all other
surrounding color photographs,
accentuating Ms. Schuler's

femininity depicting close up of
Plaintiff

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p.
ey

App. 124

in social attire and social setting

and pose while other pictures of
business people are
photographed in professional
business attire and professional
settings. Aplt. App., 12% 143,
column 2.

b. Photograph caption "CHANGE
SEX, CHANGE THE PAST:
BEFORE BECOMING
PRINTRON CEO AS ELEANOR
SCHULER, JOHN HUMINIK, JR.
KAN TWO COMPANIES THE
SEC ACCUSED OF FRAUD.
WHO KNEW ?" Apit. App.,
127, 143, column 2.

Statement a. depicted a photograph of Plaintiff in a
manner which implied falsehoods. The subject photograph
featured a close up shot of Plaintiff in a social setting, set in the
top, center of the index, in contrast to surrounding black and
white photographs of persons in professional attire and settings.
This portrayal of Plaintiff sharply contrasted with the magazine's
typical portrayal of business professionals. The caption under
the photograph stated "CHANGE SEX, CHANGE THE
PAST[.]" Aplt. App., 127; 143 column 2.

When viewed separately and together, the photograph
and its caption attributed to Schuler characteristics including
deceitfulness, dishonesty, immorality, and untruthfulness,
particularly with regard to her business dealings. These

App. 125

statements further implied that Schuler changed her sex for
other than medical reasons, in order to escape or conceal past
wrongdoing, and that the authors have knowledge of
undisclosed facts supporting such a conclusion. This portrayal
of Schuler was highly objectionable and unreasonable,
particularly in light of the fact that the article's target audience
includes persons with whom Schuler conducts business.

Schuler has affirmatively stated that she changed her sex
for medical reasons and her assertion must be taken as true upon
review. Whether Schuler changed her sex to obtain some illicit
business benefit is a matter of fact which can be proven or
disproven by evidence. Therefore, the trial court erred by
concluding that these statements did not support a claim for
false light invasion of privacy.

As discussed above, McGraw-Hill's characterization of
the photograph caption as "a question" is not supported by the
evidence or the grammar included in that statement. That
Statement falsely implied that Schuler, through her sex change,
avoided responsibility for any past wrongful acts or omissions.
Interpreting both the photograph and its caption in the light
most favorable to Schuler, as is required, she has sufficiently
plead a false light claim upon which relief can be zranted and the
trial court's ruling constitutes reversible error.

f. But she didn't like to talk about
that." Aplt. App., 127, 144,
column 1, q 3.

As noted above, this statement was a false statement of
fact. In the context of this article, the staternent served to
reinforce McGraw-Hill's premise that Schuler was unwilling to
talk about her past FBI work and that she was deceptive and

App. 126

secretive, particularly in business dealings. Schuler's willingness
to talk about her past FBI work is a factual matter that can be
proven or disproven. McGraw-Hill's false portrait of Schuler is
unreasonable and highly objectionable, particularly in light of the
fact that she published a book about her experiences as a
“double agent" and has had other discussions of her career.
Aplt. App., 144, column 1, 3.

The subject statement attributed to Schuler false
characteristics, conduct, and/or beliefs, including that she was
unwilling to discuss or acknowledge her past careers, that she
attempted to hide or conceal her past, that she was untruthful
and deceptive, and that she had good reason to hide her past to
avoid responsibility for prior misdeeds. Interpreting this
Statement in the light most favorable to Schuler, she has
sufficiently stated an actionable claim for false light invasion of
privacy.

h. "there was a stain on her record.
She had twice been sued in
Federal Court by the SEC, twice
agreeing to injunctions, without
admitting or denying guilt, that
prohibited her from violating the
securities laws. One of the
injunctions was known to the
Amex when it approved
Printron's listing on the ECM.
The other was not." Aplt. App,
127, 144, column 2, ¢ 1.

k. "Her earlier SEC record, and her
change in gender were

App. 127

concealed by Printron not only
from Barnes but from the Amex’
“blue ribbon’ panel of Wall Street
notables that had handpicked the
23 ECM companies. Schuler
also hid her previous identity,
and the injunction, from
securities regulators in New
[ Y]Jork, in a ‘sunshine law’ filing
14 months before the day the
balloons fell on the Amex floor
(box)." Aplt. App., 128, 145,
column 2, § 2-column 3, § 1.

t. “Neither the book nor the double
agent Career were mentioned in
any of Printron's filings with
investors and regulators." Aplt.
App., 128-29, 145, column 3, §
-

w. "The trouble . . . arises whenever
Schuler’s pre-Schuler activities
are mentioned in Printron's
public disclosures. Time after
time, they refer to Schuler as a
“she'- even when discussing
positions held when Schuler was
a ‘he. Aplt. App., 129, 146,
column 1, § 2.

App. 128

All of the above statements falsely implied that Schuler
had a duty to disclose the referenced information and that she
failed to do so, when in fact no such duty existed. Specifically,
each of these statements falsely implied that Schuler “hid"-her
prior identity from the SEC, investors, and the Amex. Even if
Schuler did not disclose such information, she was not required
to do so, and the statements’ implication that she had a duty to
do so is false and creates the false impression that Schuler was
deceptive. Thus, the statements are actionable under false light
invasion of privacy theories and the trial court erred by

dismissing Schuler’s false light slaims.
i. "Eleanor Schuler had two
records of alleged securities law

transgressions-one as a woman,
and one as a man. In fact, the
name “Eleanor Schuler’ was one
that she had made up out of thin
air." Aplt. App., 127-28, 144,
column 2, { 2.

The article's statement that "[i]n fact, the name “Eleanor
Schuler’ was one that she had made up out of thin air[,]" placed
Schuler in a false light by stating as a fact that the name was
“made up," and by further implying that the name was "made
up" for fraudulent or deceptive purposes. Aplt. App., 127-28;
144, column 2, 4 2. The true origin of Schuler's name, can be
proven at trial and the name change was critical to her
successful sex transformation. The falsity of this statement,
combined with the false implications it raised in the context of
this article, make the statement actionable under a false light
invasion of privacy theory. The trial court's erroneous dismissal
of this claim should be corrected on appeal.

App. 129

v. "At issue is not her sex change,
but rather the extent to which
her concealment of that change
masked other things." Apt.
App., 129, 146, column 1, { 1.

McGraw-Hill's above statement falsely implied that
Schuler concealed her sex change from business associates and,
further implied, that she did so in order to "mask" or "conceal"
wrongdoing. Aplt. App., 129; 146, column 1, § 1. In
accordance with the other statements referenced in this section,
this statement placed Schuler in a false light by unreasonably and
in a highly objectionable manner attributing to her
characteristics, belief, and/or conduct including deception,
dishonesty, and other misdeeds. Schuler sufficiently stated a
claim for false light on this point, and the trial court's decision
was error.

x. “Moreover, the filings say that
Schuler was a ‘self-employed
technology and corporate
consultant’ from 1966 to 1991.
In fact, Schuler, as Huminik, was
president of General Industrial
Corp. and General Enterprises
Corp., which allegedly defrauded
investors during the 1970s."
Aplt. App., 129, 146, column 1,
q{ 2-3.

The above statements falsely implied that Schuler's
description of her past employment included in the "filings" was
deceptive. Thus, this statement placed Schuler in a false light by

a
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et
4
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Sy
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App. 130

attributing to her false characteristics and conduct, including
deception, dishonesty, and an intent to defraud company
investors and others. Schuler's claims in this regard sufficiently
state a claim for false light invasion of privacy.

ag. "The SEC's mild treatment of
Schuler in 1991 raises yet
another issue: Did the SEC
know in 1991 that Schuler was
Huminik?" Aplt. App., 130,
146, column 3, ¢ 2.

The last sentence of this statement falsely implied that
the SEC did not know that Schuler was Huminik, and thus, that
Schuler was deceitful, dishonest, and deceptive with regard to
the SEC and her business dealings. As discussed above, the
SEC did know that Schuler was Huminik as evidenced by the
nature of her signature on the 1976 consent, which stated "John
Huminik, Jr., now known as Eleanor L. Schuler[.]" Aplt. App.,
207-209.

McGraw-Hill's statement in the context of this article,
placed Schuler in a false light before the public by stating as a
fact and by implying that she deceived the SEC by hiding her
prior gender change and her prior SEC consent, and further, that
she did so to further her own devious ends. This statement is
sufficient to form the basis of a false light invasion of privacy
action, particularly at this stage of proceedings and the trial
court should be reversed on this point.

When read as a whole, the article falsely implied that
Schuler was deceptive, dishonest, and disreputable in business
matters and that she committed "offensive" and “illegal” acts.
The statements cited in this section, read together with those

App. 131

referenced in the Amended Complaint and in the context of the
entire article, sufficiently state a claim for false light invasion of
privacy. Therefore, Schuler’s claims should reinstated on appeal
and she should be allowed to pursue her claims, seek proper
discovery of supporting evidence, and present her claims to an
impartial fact finder.

4. SCHULER STATED A VALID CLAIM
FOR PUBLICATION OF PRIVATE FACTS
INVASION OF PRIVACY

(a) Elements of Claim for Publication of
Private Facts

An invasion of privacy through publication of private
facts occurs when one publicizes a matter concerning a person's
private life, which publicity is of a kind that: a) would be highly
offensive to a reasonable person; and b) is not of legitimate
public concern. Moore, 77 N.M. at 383. See also Restatement
(Second) of Torts § 652 D at 383. Schuler's Amended
Complaint sufficiently stated a claim for this cause of action.

(b) McGraw-Hill Published Private Facts
About Schuler, invading her Privacy

McGraw-Hill's article included over twenty (20)
references to Schuler's sex, gender, and name change, and sex
change. Aplt. App., 127-130, 143-153: Section IV (D) herein,
Statement of Fact letters b, j, k, m, q, u, v, w, aa, ad, af. and aj.
The repeated reference to Schuler's sex and name change, in the
context of this article, are of a type that would be highly
offensive to a reasonable person and are of no legitimate public
concern.

App. 132

As stated above, the article appeared in an international
business publication directed to business professionals, including
Schuler’s current and potential business associates. The article
purported to be about the Amex's Emerging Company
Marketplace (ECM). However, a reading of the entire article
reveals that instead, its focus is on Schuler’s sexual history, her
alleged concealment of that history for illicit purposes, and her
deceptive behavior in business matters. Aplt. App., 143-153.

While Schuler’s sex change was not concealed from her
business associates, nor was it publicized to them, since it was
ancient history. Schuler’s sex change occurred in the 1970s,
approximately two decades before this article appeared in
Business Week magazine. Schuler's Amended Complaint
included the allegation that these private facts were not "public"
in the context of her business dealings.

At this stage of proceedings, the trial court was
obligated to accept Schuler'’s assertions as true. Instead, the trial
court erred by usurping the jury's role of determining whether
Schuler had proven this claim. Thus, the trial court's decision
should be reversed on appeal.

5. SCHULER STATED A VALID CLAIM
FOR INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS

(a) Elements of Intentional Infliction of
Emotional Distress

In order to state a claim for intentional infliction of
emotional distress Schuler must show that McGra\v-Hill's
conduct was extreme, outrageous, and done intentionally or
recklessly causing her severe emotional distress. See Hakkila v.

App. 133

Hakkila, 112 N.M. 172, 175, 812 P.2d 1320, 1323 (Ct. App.
1991). The statements referenced in McGraw-Hill's article and
the article as a whole, establish a claim for intentional infliction
of emotional distress.

(b) | McGraw-Hill Intentionally Inflicted
Emotional Distress Upon Schuler

In the offending article, McGraw-Hill repeatedly
portrayed Schuler as deceptive and untruthful, it included false
statements (blatant and implicit), it included statements that
Schuler's name and sex change were unknown to the SEC and
her business associates, and made other such references
throughout as discussed herein. McGraw-Hill's conduct
constitutes exactly the type of outrageous conduct that this tort
was meant to address.

A fair and impartial reading of the entire offending article
evidences the devastating nature of its impact on Schuler and
the cavalier attitude with which McGraw-Hill decimated
Schuler's career, business, and personal relationships. Under
these facts, Schuler sufficiently stated a claim for intentional
infliction of emotional distress and the trial court's dismissal of
this claim should be reversed on appeal.

6. SCHULER STATED A VALID CLAIM
FOR INTERFERENCE WITH
CONTRACTUAL RELATIONS/
PROSPECTIVE ADVANTAGE

(a) Elements of Interference with
Contractual Relations/Prospective
Advantage

App. 134

"The tort of interference with existing or prospective
contractual relations requires proof of: 1) a contract or
prospective contractual relation; 2) defendant's knowledge of
the contractual relation; 3) intentional and improper
interference, which means either (a) improper motive solely to
harm plaintiff, or (b) an improper means; and, 4) pecuniary harm
caused by the interference.” Leyba v. Renger, 874 F. Supp.

1218, 1225 (1994) (citing Dough v. Adventist Health Syst.
| Inc., 108 N.M. 801, 806, 780 P.2d 627, 632 (1989)).

(b) McGraw-Hill Interfered with Schuler's
Contractual Relationships and

Prospective Advantage

Schuler’s Amended Complaint included allegations that
McGraw-Hill, through its article, tortiously interfered with
Schuler’s current and potential business relationships by making
false and defamatory statements about her and by doing so
intentionally or with reckless disregard and by improper means
or motive. These allegations must be taken as true at this stage
of the proceedings.

As noted above, McGraw-Hill’s article included
numerous false and defamatory statements and other wrongful
items with regard to Schuler. A reading of the entire article,
forces the reader to believe that Schuler was deceptive and
untrustworthy, particularly with regard to business matters.
Such a portrayal was false and devastating to Schuler's
credibility, reputation, and her ability to succeed or to maintain
her business status.

Again the trial court attempted to decide matters of

proof of this cause of action, instead of the sufficiency of the
claim itself. That was not the trial court's role. Schuler

App. 135

sufficiently alleged causes of action including defamation,
invasion of privacy, intentional infliction of emotional distress an
interference with contractual relations and -prospective
advantage. This cause of action also has been alleged
sufficiently to withstand McGraw-Hill'’s Motion and the trial
court's ruling should be reversed on appeal.

VIL. CONCLUSION

At all stages of this litigation, the trial court unjustly
subordinated Schuler’s fundamental interest in preserving her
reputation and good name, to the malicious self-serving interests
of McGraw-Hill and the media. The law does not permit the
trial court to adopt such a prejudicial and biased position in
evaluating the sufficiency of Schuler’s claims.

The trial court failed to view Schuler’s claims in the light
most favorable to her. The trial court also erred by attempting
to decide the merits of Schuler’s causes of action, instead of the
sufficiency of the allegations themselves.

The trial court's failure to view McGraw-Hill's article, in
whole and the separate statements contained therein, as
including actionable false statements of fact was reversible error.
Viewed in accordance with legal standards, Schuler’s Amended
Complaint sufficiently stated the causes of action alleged. Once
the article's statements are viewed fairly and impartially, in
Schuler’s favor as the law dictates, it is the jury's role to
determine whether Schuler has proven her claims. At this stage
of proceedings, proof of Schuler's claims is not at issue.
Especially in this situation, when Schuler has not had the benefit
of any discovery. For reasons stated above, the trial court
committed reversible error by dismissing Schuler's Amended
Complaint and its decision should be reversed on appeal.

App. 136

(The above issues were preserved for appeal at Aplt.
App., 125-153, 182-209.).

WHEREFORE, for the foregoing reasons, Schuler
respectfully requests that the Court enter an Order reversing the
District Court's grant of McGraw-Hill's Motion to Dismiss and
mandating that the trial court present this case to a jury for a
decision on the merits. Also, Schuler requests that the Court
grant her attorney fees, costs, and such other relief the Court
deems proper.

T MENT NT
Schuler requests oral argument.
Respectfully submitted,
Ls/
Eleanor Schuler
Pro Se for Appellant

2201 Spruce Needle Rd.
Rio Rancho, NM 87124
(505) 892-2189

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the
foregoing was mailed or delivered to all those entitled to notice

on 8th or 9th ___ day of __ September _ , 19.97.
Ls/

Eleanor Schuler
2201 Spruce Needle Rd.
Rio Rancho, NM 87124
(505) 892-2189

App. 137

APPENDIX H
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
ELEANOR SCHULER,
Plaintiff/Appellant,
v. No. 97-2225

(Filed October 27, 1997)

THE MCGRAW-HILL COMPANIES, INC.,

including BUSINESS WEEK, an

unincorporated division or subsidiary

of THE MCGRAW-HILL COMPANIES, INC.,

a New York Corporation, BUSINESS WEEK ONLINE,
GARY WEISS, individually and as employee of

THE MCGRAW-HILL COMPANIES, INC.,and
MICHAEL SCHROEDER, individually and as

employee of THE MCGRAW-HILL COMPANIES, INC.,

Defendants/Appellees.

On Appeal from the United States District Court
for the District of New Mexico

The Honorable Santiago Campos
District Judge

D.C. No. CIV 96-0292 SC/RLP

APPELLANT'S REPLY BRIEF

App. 138

Respectfully submitted,

ELEANOR SCHULER
2201 Spruce Needle Rd.
Rio Rancho, NM 87124
(505) 892-2189

Pro Se for Plaintiff/Appellant

STATEMENT REGARDING ORAL ARGUMENT
Appellant desires oral argument.

(7

App. 139
I. TABLE OF CONTENTS

STATEMENT REGARDING ORAL
FE oe ea 138, 167
TABLE OF AUTHORITIES ............... 141
7 Federal Statutes and Rules ........... 141
be United States Supreme Court Cases .... 141
a Other Federal Authorities ............ 141
4, New Mexico Authorities............. 142

a. New Mexico Statutes ......... 142

b. New Mexico Decisions ........ 142
9 Other Authorities .................. 142
STATEMENT OF THE CASE ............. 143
SUMMARY OF ARGUMENT ............. 144
teh seca Ahk ee OE OOD 144-161
1. SCHULER’S RIGHT TO PROTECT

HER REPUTATION IS ENTITLED

TO EQUAL CONSTITUTIONAL

I ce) 146
2 STANDARD OF REVIEW .......... 147

5S SCHULER’S AMENDED
COMPLAINT STATED A VALID
CLAIM FOR DEFAMATION ........ 147

App. 140

4. SCHULER STATED A VALID
CLAIM FOR FALSE LIGHT
INVASION OF PRIVACY .......... 162

3 SCHULER STATED A VALID
CLAIM FOR PUBLICATION OF
PRIVATE FACTS INVASION
CF PA Weed 155% Star che aleiwes 163

6. SCHULER STATED A VALID
CLAIM FOR INTENTIONAL
INFLICTION OF EMOTIONAL
Es 60 xa sGRn eas Oh AR Oo Max 164

p? SCHULER STATED A VALID
CLAIM FOR INTERFERENCE
WITH CONTRACTUAL
RELATIONS/PROSPECTIVE
PSs ger re ree 165

F. be wo) + eR CePEyerory vise sve Tr 166

3 STATEMENT REGARDING ORAL
pe I re tery ere ene mr ee 167

App. 141
TABLE OF AUTHORITIES
Statute/Case Page
Federal Statutes and Rules
co 146, 166
i es... 166
17 C.F.R. 11 § 229.401(e) (1993) ............. 152, 156
17 C.F.R. 11 § 229.401(f) (1993) ................. 148
United States Supreme Court Cases
Rosenblatt v. Baer, 383 U.S. 75 eS cs ys 146
Wolston v. Reader’s Digest Ass’n Inc.,
SS 164

iO V. Int'l Co., 488 F. Supp. 630
SE 155
Little v.Breland, 93 F. 2d 755 (11th Cir. ae 145

of Employer Leasing Co

797 F. Supp. 542 143

App. 142
New Mexico Authorities
New Mexico Statutes
BED, THRE © Be eee BORA Gos Spek d Sob cba cee een 165
SEE. Side Oe 5 0-o A hc nd bop uae 144, 147, 159

New Mexico Decisions

Andrews v. Stallings, 119 N.M. 478,
ee te 3 150

Marchiondo v. Brown, 98 N.M. 292,
Ge a a hk oe se oe as enon vcaee 166

Moore v. Sun Publishing Corp., 118 N.M. 375,
881 P.2d 735 (Ct. App.), cert. denied,
ogee eee reer ereeee 149

Other Authorities
Christopher Burns, Princess Diana Dies After Paris
h: Boyfri in iden b
Paparazzi, Albuquerque Journal, August 31, 1997,
Oh ek Pe oko so Oa ee a ee ek CU Soe ea hea wae 145
L. Elridge, The Law of Defamation § 53 (1978) ...... 146

Random House College Dictionary (Rev. ed. 1988) 152, 158

THERE ARE NO PRIOR OR RELATED
APPEALS IN THIS CASE

App. 143
Il. STATEMENT OF THE CASE

The McGraw-Hill Companies Inc.’s (McGraw-Hill)
comments regarding Schuler’s Motion for Remand to State
Court (Remand Motion) falsely imply improper motives on the
part of Schuler or her representatives. McGraw-Hill’s
comments in this vein, are a last ditch attempt to misdirect the
Court’s attention to irrelevant non-issues.

Schuler’s attempt to have the case heard in a state
forum, was entirely valid given the state issues involved. Aplt.
App., 72-85, 102-111. The legal argument based on the amount
in controversy was proper given the requirement that removal
be determined by reference to pleadings at the time of removal.

tate of T v. Alli Employer Leasin » 197 F.
Supp. 542, 544 (N.D. Tex. 1992); Aplt. App., 78.~McGraw-
Hill’s insinuation to the contrary is a shallow attempt to
prejudice this Court against Schuler.

Likewise, McGraw-Hill falsely stated that Schuler
“threatened to divest the [federal district] court of jurisdiction
by dismissing the removed action . . . and [fraudulently joining]
a token in-state defendant.” A rational reading of Schuler’s
Remand Motion and supporting documents shows that she
never made any such threat. Aplt. App., 72-85, 102-111.
Instead, Schuler stated that additional state defendants may be
added to the suit. The addition of state defendants to a case
does not make the addition “fraudulent.” The addition of such
defendants still is a possibility since discovery has not occurred
in this case and other potential defendants may be revealed.
McGraw-Hill’s desperate attempt to further stain Schuler’s
reputation by falsely characterizing her Remand Motion as a
“threat,” exemplifies the wanton disregard with which it has
conducted itself with regard to Schuler’s reputation. The Court

i,

App. 144

should ignore McGraw-Hill’s false and inflammatory comments
on this matter and focus on the big picture; the article which is
the subject of this appeal.

Further, Schuler takes exception to McGraw-Hill’s
rendition of allegedly undisputed facts. Appellee’s Answer
Brief, 3-5. Schuler’s pleadings are replete with statements and
supporting documents showing that the article as a whole was
defamatory, invaded her privacy and was injurious to her
business and personal endeavors. After all, this was not a mere
paragraph in some gossip column. It was a major tabloid style,
four (4) page purported investigative expose in a first class
business magazine. Aplt. App., 143-147. Further, it was
electronically published on the “world wide web” where it
remains accessible to anyone with a modem. Aplt. App., 148-
153.

McGraw-Hill’s characterizatior. of portions of the
article, taken out of context, do not change the nature of the
offending article and certainly do not change the requirement
that the article be viewed as whole. N.M. UJI § 13-1004
(1997). Thus, its alleged facts are irrelevant to determining this

appeal
I. SUMMARY OF THE ARGUMENT

Contrary to McGraw-Hill’s assertions, the subject article
was a prime example of tabloid style journalism. It has all the
elements: 1) it focused on Schuler, a corporate executive who
has lived an interesting and varied lifestyle which included
dangerous FBI counterspy work and a sex change operation; 2)
it sensationalized her lifestyle and her role in various companies
and capacities in which she was employed; 3) it included
unsupported allegations of Schuler’s corporate and personal

App. 145

impropriety and criminal behavior; and 4) it falsely led readers
to believe that Schuler used deception and her sex change to
“get away” with improper actions. Aplt. App., 143-153.

Such behavior should not be allowed to stand under the
guise of freedom of speech. Freedom of speech is limited, and
for good reason. The recent tabloid exploits regarding Princess
Diana of Wales, exemplify the press’s irresponsible attitude and
excesses toward individuals and their privacy rights.

Iter Par

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Albuquerque Journal, August 31, 1997, at Al, A10. At the time
of this article, Schuler had been a private person for about
fifteen (15) years. This time span is equivalent to the time
between which one enters kindergarten and then graduates from
high school; a great span of the calendar. Prior to that time, at
most she was a limited purpose public figure. See Little v.
Breland, 93 F.3d 755, 767 (11th Cir. 1996).

McGraw-Hill’s vain attempt to trivialize the offending
nature of its article and its refusal to acknowledge the limitations
of the press, does not change the defamatory and offensive
nature of the article. A person’s reputation is a product of
labor; the very essence of a person’s being. It is a precious and
irreplaceable commodity. Property is most sacred or liberty
cannot exist. So too, such reputation can be murdered when a
publication uses the pen as a swift and sharp sword. McGraw-
Hill’s wanton destruction of such a commodity for mere profit
is contemptible and its vile behavior should be redressed by the
courts for the benefit of Schuler and any other unsuspecting
persons who would be its next target.

A fair reading of the entire article, leaves the reader with
a clear and certain understanding that Schuler has acted and

App. 146

continues to act disreputably in her business and personal
dealings. Especially in view of the fact that Schuler has no
criminal record and never has been arrested. This
characterization of Schuler was false and defamatory, cast her
in a false light before the public, and disclosed her medical
history, which was of no concern to the public. The right to
trial by jury is inviolate and is guaranteed by the United States
Constitution. U.S. Const. amend. VII. Schuler is here
pounding on the doors of justice to exercise her right to a jury
trial. She is entitled to pursue this action and to present it to a
jury for trial.

IV. SCHULER’S RIGHT TO PROTECT HER
REPUTATION IS ENTITLED TO EQUAL
CONSTITUTIONAL PROTECTION

McGraw-Hill would have this Court believe that the only
interest worth protecting is freedom of speech. However, much
to its dismay, the United States Constitution did not limit itself
to protecting that interest. Schuler’s right to protect her
reputation is equally recognized by the courts and equally
entitled to constitutional protection. L. Eldridge, The Law of
Defamation § 53, pp. 293-294 (1978); Rosenblatt v. Baer, 383
U.S. 75, 92 (1966).

Schuler’s Amended Complaint sufficiently states causes
of action for defamation, false light invasion of privacy,
intentional infliction of emotional distress, interference with
contractual relations, and interference with prospective
advantage. Aplt. App., 125-153, 1-17. When considering
Schuler’s claims, it is imperative that the Court view the
offending article as a whole and in context. When viewed in
that light, it is obvious that the trial court erred by failing to
deny McGraw-Hill’s Motion to Dismiss (Motion) and by failing

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App. 147

to give equal credence to Schuler’s claims and interests in this
case.

V. STANDARD OF REVIEW

McGraw-Hill’s suggestion that Schuler’s Amended
Complaint must be read in favor of freedom of the press is
ludicrous and lacks authoritative support. A plain and lucid
reading of the subject article as a whole, the Amended
Complaint, and supporting pleadings reveals that Schuler’s
statement of her claims clearly is adequate to overcome the
Motion to Dismiss in this case. Even if the Court views the
pleadings under a “somewhat stricter standard,” it still must
view the article as a whole and the pleadings in Schuler’s favor.
N.M. UJI § 13-1004.

VI. SCHULER’S AMENDED COMPLAINT STATED
A VALID CLAIM FOR DEFAMATION

The statements referenced in Schuler’s Brief in Chief,
taken together with the article as a whole, were defamatory.
The district court erred in finding otherwise. The subject
statements are referenced below, designated according to the
letter used in Schuler’s Amended Complaint.

b. Photograph caption "CHANGE SEX,
CHANGE THE PAST: BEFORE
BECOMING PRINTRON CEO AS
ELEANOR SCHULER, JOHN
HUMINIK, JR. RAN TWO
COMPANIES THE SEC ACCUSED
OF FRAUD. WHO KNEW ?" (Apit.
App., 143, column 2, top.).

App. 148

The prominent and strategic position of the false factual
statement "CHANGE SEX, CHANGE THE PAST” in the
center of Business Week's index, especially when viewed in the
context of the entire article, furthered McGraw-Hill’s premise
that Schuler deceptively hid her identity for illicit reasons. A
plain and common sense reading of this statement reveals it to
be one of fact and not merely a “shorthand reference.” Indeed,
the statement sets the tone for the entire article.

McGraw-Hill's related statements regarding the SEC's
knowledge or lack of knowledge of Schuler’s past likewise
mischaracterized Schuler’s relationship and candor with the
Securiti

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1098%3A1. Public record. Not legal advice.