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Others First, Inc. v. Better Business Bureau of Greater St. Louis, Inc.

United States Court of Appeals, Eighth Circuit

July 12, 2016

Others First, Inc. Plaintiff-Appellant
v.
Better Business Bureau of Greater St. Louis, Inc. Defendant-Appellee

          Submitted: January 14, 2016

         Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before LOKEN, GRUENDER, and KELLY, Circuit Judges.

          LOKEN, Circuit Judge.

         In 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.

         The BBB filed motions to dismiss and for summary judgment. The district court[1] 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.[2] 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).

         I. The Tortious Interference Claim.

         Others 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).

         "[W]here 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.

         Others 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.

         II. The Injurious Falsehood Claim.

         Under 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).

         If a 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 ...


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