Others First, Inc. Plaintiff-Appellant
Better Business Bureau of Greater St. Louis, Inc. Defendant-Appellee
Submitted: January 14, 2016
from United States District Court for the Eastern District of
Missouri - St. Louis
LOKEN, GRUENDER, and KELLY, Circuit Judges.
August 2011, the Better Business Bureau of Greater St. Louis
("the BBB") published a news release ("the
Release") expressing concern about Others First, Inc.
("Others First"), a Michigan-based charity that had
recently begun soliciting vehicle donations in the St. Louis
area. A copy of the Release is attached as Appendix A to this
opinion. In June 2014, Others First filed this diversity
action in the Eastern District of Missouri, asserting tort
claims for injurious falsehood, based on alleged falsehoods
contained in the Release, and for interference with business
expectancy, based on allegations that the BBB published the
Release to direct car donations to a competing BBB member,
took actions to keep the Release on the first page of Google
search results for the search term "Others First, "
and induced a Kansas City television station to run a story
in November 2014 based on the Release.
filed motions to dismiss and for summary judgment. The
district court granted summary judgment in favor of the
BBB, concluding that the Release was not actionable injurious
falsehood because "no reasonable factfinder could ever
find that the BBB stated anything other than the truth and
its seemingly well-informed opinions about Others First,
" and that the tortious interference claim necessarily
failed because the Release contained no wrongful defamation.
Others First appeals, arguing that both claims should have
survived summary judgment because the record contained
sufficient evidence to raise genuine issues of disputed
fact. Reviewing the grant of summary judgment
de novo and viewing the facts in the light most
favorable to the non-moving party, Others First, we affirm.
See Mercer v. City of Cedar Rapids, 308 F.3d 840,
843 (8th Cir. 2002) (standard of review).
The Tortious Interference Claim.
First's principal argument on appeal is that the district
court erred in concluding that the tortious interference
claim necessarily fails because the Release contained no
actionable injurious falsehood. Under Missouri law,
"[t]ortious interference with a contract or business
expectancy requires proof of: (1) a contract or valid
business expectancy; (2) defendant's knowledge of the
contract or relationship; (3) a breach induced or caused by
defendant's intentional interference; (4) absence of
justification; and (5) damages." Nazeri v. Mo.
Valley Coll., 860 S.W.2d 303, 316 (Mo. banc 1993). To
show an absence of justification, Others First has the burden
of producing sufficient evidence to show that the BBB
employed improper means to further its own interests.
"[I]mproper means are those that are independently
wrongful, such as . . . defamation, misrepresentation of
fact, . . . or any other wrongful action recognized by
statute or the common law. Conversely, no liability arises if
the defendant had an unqualified legal right to do the act
complained of." Id. at 317 (citation omitted).
a tortious interference claim is based upon an alleged
defamation, if a plaintiff's defamation claim fails, the
tortious interference claim must also fail because the
plaintiff cannot establish an absence of justification as a
matter of law." Castle Rock Remodeling, LLC v.
Better Bus. Bureau of Greater St. Louis, 354 S.W.3d 234,
245 (Mo. App. 2011); see Milkovich v. Lorain Journal
Co., 497 U.S. 1, 18-20 (1990). We reject Others
First's contention that the record contains no evidence
supporting the BBB's legitimate interest in warning
consumers of questionable business practices. If record
evidence was needed, Others First itself provided the
BBB's published Mission Statement in its summary judgment
responsive exhibits. Thus, if the Release contained no
actionable injurious falsehood -- the issue we will discuss
in Part II -- Others First needed to submit sufficient
evidence of some other independently wrongful action to avoid
summary judgment dismissing its tortious interference claim.
First argues that it submitted sufficient evidence of three
independently wrongful acts: the BBB (1) published the
Release "to help a BBB member . . . obtain an unfair and
illegal competitive advantage over Others First"; (2)
republished the Release to keep it at the top of Google
search engine results; and (3) induced or assisted a Kansas
City television station to run the November 2014 story based
on the Release. Assuming without deciding that sufficient
evidence supporting these allegations of wrongful motive and
actions would defeat a defamation defendant's motion for
summary judgment, the record contains no evidence supporting
these allegations, other than their assertion in the First
Amended Complaint, and declarations by an officer and a
contracting agent stating that the assertions are what Others
First believes to be true. "Mere opinion fails to raise
any issue of material fact that precludes summary
judgment." Rice v. Hodapp, 919 S.W.2d 240, 244
(Mo. banc 1996); see Castle Rock, 354 S.W.3d at
245-46. Therefore, Others First failed to prove the BBB
employed any other improper means, and the district court
properly granted summary judgment on this claim if the
Release was not defamatory.
The Injurious Falsehood Claim.
Missouri law, although defamation and injurious falsehood are
distinct torts, for a statement to be actionable as injurious
falsehood it must be defamatory. See Diehl v. Kintz,
162 S.W.3d 152, 155-56 & n.4 (Mo. App. 2005). "[O]ne
who publishes a false statement harmful to the interests of
another is subject to liability for pecuniary loss resulting
to the other" if:
(a) he intends for publication of the statement to result in
harm to interests of the other having a pecuniary value, or
either recognizes or should recognize that it is likely to do
so, and (b) he knows that the statement is false or acts in
reckless disregard of its truth or falsity.
Wandersee v. BP Prods. N. Am., Inc., 263 S.W.3d 623,
628 (Mo. banc 2008) (quotation and emphases omitted). To
determine if the statement is defamatory, the challenged
words "must be stripped of any pleaded innuendo and
construed in their most innocent sense, " but at the
same time "must be considered in context, giving them
their plain and ordinarily understood meaning."
Nazeri, 860 S.W.2d at 311 (citations omitted).
statement is true, it is not defamatory as a matter of law.
Rice, 919 S.W.2d at 243-44. Statements of opinion
are protected by the First Amendment, and, even if made
maliciously or insincerely, cannot be actionable. See
Hammer v. City of Osage Beach, 318 F.3d 832, 842 (8th
Cir. 2003) (applying Missouri law). Whether a statement is a
protected opinion is also a question of law. The court must
look to "the totality of the circumstances to determine
whether the ordinary reader would have interpreted the
statement as an opinion." Id. at 842-43
(quotation omitted). However, the First Amendment
"privilege does not apply when the statement of opinion
implies the existence of undisclosed defamatory facts."
The question for the court is ...