In 2004, Elliot Spitzer, then New York’s Attorney General, rocked the insurance industry when he announced that he was filing an action against insurance broker Marsh & McLennan, accusing it of violating the antitrust laws by illegally “steering” insurance business to preferred insurers. The investigation, which has become known as the “Contingent Commission Investigation,” ultimately resulted in dramatic changes to certain broker practices and the payment of significant fines by several brokers and insurers. While the investigation has long since been concluded, and even the follow-on civil action (In re Insurance Brokerage Antitrust Litigation) has been settled, the matter now lives on through a new defamation action brought against Spitzer by a former Marsh executive who was swept up in the probe.

When the investigation was commenced by the New York Attorney General’s office, it focused not only on corporate entities, but also on individual defendants, including Marsh executive William Gilman. Gilman denied the allegations against him, and his case was tried to a verdict in February of 2008. Gilman was exonerated on a host of charges, but found guilty of violating the Donnelly Act, New York’s antitrust law. That verdict, however, was subsequently vacated by the Court in July of 2010, after the Court announced that “newly discovered evidence undermines the Court’s confidence in the verdict.”

In the wake of the Court’s decision to vacate Gilman’s conviction, the Wall Street Journal published an editorial questioning Spitzer’s initial decision to prosecute Gilman. On August 22, 2010, Spitzer responded to the editorial with an article published by entitled, “They Still Don’t Get It,” in which he defended his decision to bring the action. Gilman contends that he was defamed by several of Spitzer’s statements in the article, and , on August 19. he filed an action for defamation against Spitzer seeking $60 million in compensatory damages and another $30 million in punitive damages. The case is Gilman v. Spitzer, Case No. 11-05843, U.S.D.C. for the Southern District of New York.