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April 20, 1983

Sherwood WEBSTER, Plaintiff,
SUN COMPANY, INC., and Anthony L. Anderson, Defendants; WEBSTER-HEISE CORPORATION, Plaintiff, v. SUN COMPANY, INC., and Anthony L. Anderson, Defendants

The opinion of the court was delivered by: GREEN

 JOYCE HENS GREEN, District Judge.

 These consolidated cases arise from the transmittal of an allegedly libelous memorandum to an official of the Congressional Research Service. The memorandum was created by an employee of defendant Sun Company and sent to various individuals within the company including defendant Anthony L. Anderson, who forwarded it to Congressional Research Service (CRS) official David M. Lindahl. It contained statements casting doubt upon whether an automobile fuel system device promoted by plaintiff Webster-Heise Corporation did all that it was promised to do and denouncing plaintiff Sherwood Webster, the corporation's president and the device's co-inventor, as, among other things, "unethical." Defendants have moved for summary judgment on the ground that the communication was protected by the common-law privilege for statements made to legislative bodies preliminary to a legislative proceeding. The joint leadership of the House of Representatives has filed an amicus curiae brief also arguing that the communication is privileged. As further support for their position, defendants also rely upon the speech or debate clause of the Constitution and the right to petition guaranteed by the first amendment to the Constitution. Defendants alternatively have moved to dismiss the complaint of Webster-Heise Corporation on the ground that plaintiff has failed to allege special damages. For the reasons which follow, the defendants' motion for summary judgment shall be granted and the cause dismissed. Accordingly, the alternative motion to dismiss the corporate plaintiff's complaint need not be addressed.

 The material facts are not in dispute. Plaintiff Webster is a self-taught amateur inventor. In late 1977 or early 1978 he and mechanic Richard Heise invented the octane-reducing valve hereinafter referred to as the Webster-Heise device. The device essentially is a fine mesh screen that is installed between the carburetor and the intake manifold of an automobile engine, that is, at the point in the fuel system before which the gasoline is mixed with air and after which the air-fuel mixture enters the cylinders for combustion. The principle of the device, stated elementarily, is that it will atomize the droplets of gasoline in the air-fuel mixture, thereby improving combustion. Webster claims that as a result, a car fitted with this device will be able to run without premature detonation (knocking) on gasoline ten octane numbers lower than normal, i.e., cruder and more cheaply refined grade of fuel than modern cars require. Webster expected the Webster-Heise Corporation to install the device in engines of its own manufacture, which would be sold to the major American car manufacturers.

 Webster came to Washington, D.C. in September 1980 to promote his device to automobile manufacturers, oil companies, and various public officials. During that month, but before September 17, Webster sought and obtained a three-hour meeting with CRS analyst Lindahl and other CRS scientists. Webster made certain claims regarding the device and invited Lindahl to view a demonstration of the device in Denver, Colorado on October 15, 1980.

 Defendant Anderson is a lobbyist for defendant Sun Company and has his offices in Washington, D.C. He met Webster for lunch on September 17, 1980, at which time Webster told him of the Webster-Heise device, which he said would reduce a car's octane requirements by 10 octane numbers. Webster invited Anderson to the Denver demonstration, and Anderson said that he would pursue the matter.

 As it happened, on the same day Anderson had already been scheduled to meet with Lindahl to discuss another subject. Anderson had met with Lindahl on at least nine occasions over two and a half years to discuss energy issues. At the September 17 meeting when the subject of the Webster-Heise device came up, Lindahl expressed his interest in it and told Anderson that he was going to attend the Denver demonstration. Anderson advised Lindahl that he would try to persuade someone from the Sun Company to attend. However, no Sun employee attended. There happened to be a meeting of Sun personnel at Sun Company headquarters in Marcus Hook, Pennsylvania, scheduled for the same day.

 Lindahl attended the demonstration, and at his next meeting with Anderson, on October 22, 1980, told him that he thought that the Webster-Heise device was "worthy of further discussion." Anderson Deposition, at 42. Lindahl subsequently continued to urge Anderson to interest the Sun Company in the device, and while Anderson attempted to interest Sun Company expert Walter Douthit in it, he was unsuccessful.

 In mid-December 1980, Anderson received a copy of a memorandum written by Sun Company automotive engineering expert Harry Toulmin to his superiors at the Sun Company -- the memorandum at issue in this action. The memorandum was not written in response to Anderson's inquiries. Instead, another Sun employee had heard about the device at a seminar and as a result Toulmin's superior wanted a report. Toulmin, who already knew something about Webster, checked into the device and wrote the memorandum. The memorandum was sent only to his three immediate supervisors, but one of them sent a copy to Douthit, who forwarded it to Anderson.

 The text of the memorandum is as follows:

John Griffith sent me the report on the Pace Seminar and your question on the add-on device to reduce the octane requirement by 10 octane numbers. The device which they are referring to is the Webster-Heise device which is nothing but a screen cylinder with a solid bottom that moves up and down in the carburetor riser. The amount of screen exposed to the mixture is controlled by the engine manifold vacuum. The fuel air mixture flows through the screen and this is supposed to improve the distribution in the engine and allow a reduction in manifold heating.
Devices like this have been around for ages. They will reduce octane requirement if they throttle the engine and some tests of this device indicate that the engine is throttled to 5" Hg drop at full throttle. This, of course, results in a large power drop. One laborabory [sic] that I know of was asked to test it but after signing an agreement on how the tests should be run, Heise refused to let them make any direct comparisons.
The device was invented by Heise and is being promoted by an unethical lawyer, Sherwood Webster. Webster was also the promoter of the Laforce engine a few years ago and he even objected to the tests that EPA ran on this engine as being biased and tried to get some of the EPA engineers fired. Unfortunately, Webster has a lot of friends in high places.
It is interesting that Webster has not been to EPA for an evaluation of this device, under Section 511 of the Motor Vehicle Information and Cost Savings Act. A positive recommendation by EPA would assure him of a large market. Perhaps after the Laforce ...

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