Those allegations cannot simultaneously be true and recklessly false. The defendants try to argue that because Silverstein spoke of violations of the Americans with Disabilities Act on his website but only sued for handicap discrimination under chapter 151B, that the allegations are therefore different. Whether the defendants' acts amounted to a violation of the ADA, the FMLA, chapter 151B, or the Workers Compensation law is a legal conclusion that falls within the category of opinion. As long as the underlying facts are set forth and are not defamatory, the addition of his legal opinion is protected under Friedman v. BBI . If they thought that he had no hope of such a recovery, they would have offered considerably less.
Actions speak louder than words.
Even if it is not taken as meaning that the defendants were admitting that his allegations were true, it certainly does mean that they thought that a jury would have been entitled to have accepted his claims as true, and were saying to him that the real uncertainty remaining in the case is what would happen about punitive damages. If a jury was entitled to have accepted his claims as true, that would have to mean that the defendants understood that a reasonable factfinder could draw that conclusion from the evidence, after hearing from both sides. If, as a matter of law, a jury would be entitled, to believe Silverstein's statements, Bill Silverstein must also have been entitled to do so as well. Thus, whether on the basis of bar, stipulation, or review of the overwhelming factual support for his allegations contained in the Statement of Material Facts, it is clear that liability cannot be found against William Silverstein for libel. This stitching together of separate phrases is an affirmative misrepresentation of his statements, implying that he had suggested that The Learning Company owned MSI at the time he was fired.