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

Filing 27

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED defendant's motion for summary judgment [# 10 ] is granted, defendant shall have summary judgment on all counts of plaintiff's amended complaint, and plaintiff's complaint is dismissed with prejudice. IT IS FURTHER ORDERED that defendant's alternative motion to dismiss [# 8 ] is denied as moot. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Rodney W. Sippel on 4/24/15. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
OTHERS FIRST INC.,
Plaintiff,
vs.
THE BETTER BUSINESS BUREAU OF
GREATER ST. LOUIS, INC.,
Defendant.

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Case No. 4:14 CV 2070 RWS

MEMORANDUM AND ORDER
After charity Others First hired Rick Frazier’s company to run its car donation
program, the Better Business Bureau1 issued a release warning Missouri consumers to
exercise “caution” when dealing with them because Frazier had been “criticized for alleged
improprieties in running similar programs.” Frazier is a for-profit fundraiser who has
been accused of improprieties while operating car donation programs by at least two other
charities. The release reports these facts, along with the BBB president’s statement that
“Frazier’s past problems are reason to be cautious about his newest venture.” The release
also points out that another charity was satisfied with Frazier’s operation of its car donation
program, that Frazier had never been a board member of Others First, and that both Frazier
1

“BBB is a non-profit corporation that, inter alia, compiles consumer complaints about businesses, rates businesses on an A
through F scale based on various criteria, and makes that information available to consumers through BBB’s website.
Businesses who meet a certain rating level, comply with BBB’s code of conduct, and pay a membership fee can be ‘accredited’
by the BBB.” Castle Rock Remodeling, LLC v. Better Business Bureau of Greater St. Louis, Inc., 354 S.W.3d 234, 236 (Mo.
Ct. App. 2011).

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and Others First denied that Frazier was the charity’s founder. The release goes on to
provide consumers with tips on how to donate a car to charity. The release never tells
consumers not to donate to Others First and never states that Others First has been accused
of improprieties. It is undisputed that Others First hired Frazier’s company to run its car
charity program and that Frazier was accused of improprieties while managing other
charitable car donation programs. Despite this, Others First filed state law claims against
the BBB for tortious interference with business expectancy and injurious falsehood for the
BBB’s release, claiming that the release made false statements about Others First. The
BBB immediately filed motions to dismiss and/or for summary judgment, contending that
it was entitled to judgment as a matter of law because the release is true and contains
non-actionable opinions. Others First has opposed both motions. Because the issues in
both motions are the same and both parties rely on matters outside the pleadings, I will treat
the motions as one for summary judgment. The issues in this case are straight-forward
and there are no material facts genuinely in dispute, so summary judgment is appropriate in
this case despite the absence of discovery as Fed. R. Civ. P. 1 requires the “just, speedy,
and inexpensive determination of every action.” Based on my review of the relevant
undisputed facts and the applicable Missouri law under the standards governing summary
judgment, I conclude that no reasonable fact-finder could ever find that the BBB stated
anything other than the truth and its seemingly well-informed opinions about Others First.
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To the extent Other First complains about statements made by the BBB about Frazier, it
cannot bring such claims. As such, the BBB is entitled to judgment as a matter of law on
all counts of the amended complaint for the reasons set out below.
Standards Governing Summary Judgment
The standards for summary judgment are well settled. In ruling on summary
judgment, the Court views the facts and inferences therefrom in the light most favorable to
the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U .S.
574, 587 (1986). The moving party has the burden to establish both the absence of a
genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Once the moving party has met this burden, the
nonmoving party may not rest on the allegations in its pleadings but must set forth by
affidavit or other evidence specific facts showing that a genuine issue of material fact
exists. Fed. R. Civ. P. 56(e). At the summary judgment stage, I will not weigh the
evidence and decide the truth of the matter, but rather I need only determine if there is a
genuine issue for trial. Anderson, 477 U.S. at 249; ASi Industries GmbH v. MEMC
Electronic Materials, Inc., 2008 WL 413819, *1 (E.D. Mo. Feb. 13, 2008).
Undisputed Background Facts
Others First solicits car donations nationwide under assumed names including Cars
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Helping Veterans, Cars Fighting Cancer, Cars to Help Kids, Cars Helping Pets, Cars for
Research, and Cars for Christ. After learning that Others First was soliciting in St. Louis,
the BBB investigated the charity and issued the release at issue here. The release is dated
August 2, 2011, and attached as Exhibit B to the amended complaint [#6-2]. It is entitled
“BBB Urges Caution On Others First Car Donation Programs” and states:
A national charity that is seeking car donations in the St. Louis area has ties to
a Detroit area businessman who has been criticized for alleged improprieties
in running similar programs, the Better Business Bureau (BBB) warns.
The BBB advises caution when dealing with Rick Frazier and the charity
Others First. Others First is a two-year-old nonprofit that raises money for
causes, such as disabled and homeless veterans, cancer research, children and
animals.
In recent months, Others First has mailed solicitations to St. Louis area
consumers on behalf of an affiliated charity, Cars Helping Veterans
(www.carshelpingveterans.org). Advertising flyers mailed throughout the
bi-state area say the vehicle donations go to help veterans of the U.S. Armed
Forces.
Michelle L. Corey, BBB President and CEO, said the BBB is concerned about
Frazier’s controversial history with other charitable vehicle donation
programs. “Mr. Frazier’s past problems are reason to be cautious about his
newest venture,” she said.
Corey also said it appears that a former associate of Frazier, and perhaps even
Frazier himself, may have potential conflicts of interest over their
involvement in the Others First donation program.
Frazier and former co-worker Maurice E. Banks recently signed potentially
lucrative contracts to run vehicle donation programs for the charity. Frazier
is described in the media and on the website of an Others First charity as the
charity’s founder, although he denies that role. Banks is the previous
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treasurer of Others First.
Frazier’s Charity Funding and Banks’ Charity Car Brokers are named as
fundraising consultants for Others First in several states. Contracts in Illinois
and North Carolina show Others First has agreed to pay Banks and Charity
Car Brokers 30 percent of the net profits from the program.
Frazier’s problems in the charity arena have been the subject of news reports.
The Detroit Free Press reported in 1998 that the Mother Waddles Perpetual
Mission charity in Detroit accused Frazier of several improprieties in that
donation program. The newspaper also raised questions about Frazier’s
involvement with the Charity Motors donation program in Detroit.
Last year, the Virginia-based Military Order of the Purple Heart Foundation
alleged in a court suit that an audit found widespread problems with Frazier’s
role in that program, including self-dealing, illegal practices and destruction
of incriminating records. Frazier denied the claims.
About two years ago, Frazier began operating a car donation program for
Vietnam Veterans of America in about a dozen states. That organization has
said it is satisfied with the program.
Records on file with Michigan show that Others First was registered as a
nonprofit in September 2009. The incorporator was listed as David S.
Kennedy of West Bloomflied, Mich.
In the months that followed its incorporation, Others First registered several
assumed names, including: Cars Helping Veterans, Cars for Research, Cars
Fighting Cancer, Cars for Christ, Cars to Help Kids, Cars Helping Pets, and
Mikie’s Minutes.
Others First is registered to do business in at least eight states – Missouri,
Illinois, New York, North Carolina, Washington, Colorado, Arizona and Utah
– although its various websites say it accepts donations from all 50 states.
The BBB could not determine how much Others First has raised through its
vehicle donation program or how much Frazier and Banks have received for
running the program. But financial information made public by the Military
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Order of the Purple Heart Foundation two months ago shows that foundation
made $15.9 million from its car donation program in the 11 months ending
June 30, 2010, with most of that coming from five states.
Frazier and Banks did not respond to a BBB request for interviews.
Kennedy, president of Others First, said in a letter to the BBB that Frazier has
never been a board member or officer of Others First and any reference to him
as founder is “unauthorized and misguided.” He added that because Banks
resigned from the Others First board before signing contracts with the charity,
“there never was a conflict of interest.”
The BBB has these tips to consumers considering donating a vehicle to
charity:
-Verify that the recipient organization is a tax exempt charity.
-Find out how the charity benefits financially from the resale of the car.
-For tax records, take a photo of the car and keep copies of current classified
ads or guide value estimates for similar vehicles . . .
-If a car is worth more than $5,000, get a professional appraisal before
donating.
-Find out if the charity is registered with your state.
-Check for a BBB Charity Review by going to www.bbb.org or calling
314-645-3300 . . . .
Others First alleges that “the proposed Article was factually inaccurate,” although the
amended complaint fails to specify the alleged inaccurate statements with particularity.
Others First also alleges that the BBB has continued to republish the release online, and
that “the BBB induced Fox News Station, WDAF, Kansas City, to travel to Michigan in
order to file a segment entitled: ‘Records Show That Veteran’s Charity Spends More on
Operations Than It Does On Mission.’” (Doc. # 6 at 5). Others First complains that the
news segment was “littered with errors” and the “clear intent” was to “actively interfere
with Others First’s ability to do business in Missouri.” (Id.).
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In Count I of the amended

complaint, Others First alleges that the BBB tortuously interfered with its business
expectancy by “publishing a false and misleading article,” “manipulating the Google
search engine,” and by “inducing” the television station to run a story about it for the
purpose of helping a BBB member obtain an “unfair and illegal competitive advantage
over Others First.” (Id. at 6-7). Count II seeks injunctive relief enjoining the BBB from
any further publication of the release. Count III alleges that the BBB knowingly
published a false and misleading article about Others First to unfairly advantage one of its
members.
Discussion
As stated above, Others First’s amended complaint does not state with particularity
any of the statements in the release alleged to be untrue. Ordinarily, the Court would
simply grant the BBB’s motion to dismiss without prejudice to Others First’s right to file
an amended complaint setting forth the allegedly defamatory statements with sufficient
detail so as to pass muster under Fed. R. Civ. P. 12. In this case, however, Others First has
set out all the statements it alleges are defamatory in opposition to summary judgment and
in its proposed second amended complaint.2 The Court will therefore proceed to consider
whether Others First can prevail on any of its claims based upon the statements identified
in its opposition papers and proposed amended pleading.
2

Others First submitted a proposed second amended complaint in an attempt to cure its pleading deficiencies, but amendment
would be futile as the allegations are the same as those set out in opposition to summary judgment and therefore, for the reasons
discussed herein, fail to state actionable claims as a matter of law. As such, leave to amend will be denied.

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Both parties agree that Missouri law applies to the instant dispute. In a claim for
injurious falsehood under Missouri law, “one 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. 2008) (emphasis
omitted). To prevail, Others First must prove: “(1) defendant’s intent or constructive
knowledge that publication of the false statement would cause pecuniary harm to another,
(2) defendant knew the statement was false or acted in reckless for its truth or falsity, (3)
defendant published the false statement, and (4) resulting pecuniary loss to plaintiff.”
BPSS, Inc. v. Wilhold, 4:08CV1063, 2009 WL 736693, *4 (E.D. Mo. Mar. 18, 2009).
“Defamation analysis applies to the tort of injurious falsehood.” State ex rel. Diehl v.
Kintz, 162 S.W.3d 152, 156 n.4 (Mo. Ct. App. 2005). “In order for the words to be
actionable, they must refer to the plaintiff and to be understood by others as referring to the
plaintiff.” May v. Greater Kansas City Dental Soc., 863 S.W.2d 941, 944 (Mo. Ct. App.
1993); Castle Rock Remodeling, LLC v. Better Business Bureau of Greater St. Louis, Inc.,
354 S.W.3d 234, 240 (Mo. Ct. App. 2011) (citing Sterling v. Rust Communications, 113
S.W.3d 279, 283 (Mo. Ct. App. 2003) (“In order to be defamatory, a statement must be
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clear as to the person addressed.”)). If the words are unambiguous as to the person
referred to, the issue is one to be decided as a matter of law. May, 863 S.W.2d at 944-45.
When reviewing whether statements are defamatory on a motion for summary
judgment, “the court must determine whether the statement is capable of having a
defamatory meaning.” Ribaudo v. Bauer, 982 S.W.2d 701, 704 (Mo. Ct. App. 1998).
Whether a statement is defamatory and actionable is a question of law. Kintz, 162 S.W.3d
at 155. In making this determination, “the words must be stripped of any pleaded
innuendo and construed in their most innocent sense.” Id. (citation omitted). “The
alleged defamatory words must also be considered in context, and the words are given their
plain and ordinarily understood meaning.” Id. (citation omitted). “Falsity is an element
of a prima facie defamation claim.” Castle Rock, 354 S.W.3d at 240 (quoting Sterling,
113 S.W.3d at 283). If the statements are capable of a defamatory meaning, the Court
must then inquire whether one or more privileges shelter the defendant from legal action.
Truth is an absolute defense. Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo. banc 1996).
Statements of opinion are accorded absolute privilege under the First Amendment, even if
they are made maliciously or insincerely. Ribaudo v. Bauer, 982 S.W.2d 701, 704 (Mo.
Ct. App. 1998). However, the privilege does not apply when the statement of opinion
implies the existence of undisclosed defamatory facts. Id. “The test for an ostensible
opinion is whether a reasonable factfinder could conclude that the statement implies an
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assertion of objective fact.” Kintz, 162 S.W.3d at 155 (citation omitted). To make this
determination – which is also a question of law – the Court examines the totality of the
circumstances to decide whether the ordinary reader would have treated the statement as
opinion. Ribaudo, 982 S.W.2d at 705. “Neither imaginative expression nor rhetorical
hyperbole is actionable as defamation.” Kintz, 162 S.W.3d at 155 (citation omitted).
In opposition to summary judgment, Others First alleges the following statements
are defamatory:
1) “BBB Urges Caution On Others First Car Donation Programs” (the title of
the release);
2) “The BBB advises caution when dealing with Rick Frazier and the charity
Others First. Others First is a two-year-old nonprofit that raises money for
causes, such as disabled and homeless veterans, cancer research, children and
animals. In recent months, Others First has mailed solicitations to St. Louis
area consumers on behalf of an affiliated charity, Cars Helping Veterans
(www.carshelpingveterans.org);”3
3) “A national charity that is seeking car donations in the St. Louis area has
ties to a Detroit area businessman who has been criticized for alleged
improprieties in running similar programs, the Better Business Bureau (BBB)
warns;”
4) “Michelle L. Corey, BBB President and CEO, said the BBB is concerned
about Frazier’s controversial history with other charitable vehicle donation
programs. ‘Mr. Frazier’s past problems are reason to be cautious about his
newest venture,’ she said;”
5) “Corey also said it appears that a former associate of Frazier, and perhaps
3

Others First incorrectly cites this statement as “BBB is advising consumers to be cautious when dealing with Detroit area
businessman Rick Frazier and Others First a charity that has been soliciting donations in the St. Louis area,” which is not the
actual text of the release.

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even Frazier himself, may have potential conflicts of interest over their
involvement in the Others First donation program;”
6) “Frazier is described in the media and on the website of an Others First
charity as the charity’s founder, although he denies that role. Banks is the
previous treasurer of Others First;”
7) “Frazier’s problems in the charity arena have been the subject of news
reports. The Detroit Free Press reported in 1998 that the Mother Waddles
Perpetual Mission charity in Detroit accused Frazier of several improprieties
in that donation program. The newspaper also raised questions about
Frazier’s involvement with the Charity Motors donation program in Detroit;”
and
8) “Last year, the Virginia-based Military Order of the Purple Heart
Foundation alleged in a court suit that an audit found widespread problems
with Frazier’s role in that program, including self-dealing, illegal practices
and destruction of incriminating records.”

The Court will address the last two statements first. There is no ambiguity that the words
here refer to Frazier, not Others First. As there is no dispute that these words are not “of
and concerning” Others First and cannot be understood by others as referring to Others
First, they are not actionable by Others First as a matter of law.4 See May, 863 S.W.2d at
944.
As for the first challenged statement, the title of the article is a factor to be considered
if the title accurately reflects the contents of the article. May, 863 S.W.2d at 946. Here,

4

Even if these statements were about Others First, they would still not be actionable as a matter of law because they are true for
the reasons set out in the BBB’s motion papers. Others First’s contention that these claims made against Frazier were either
settled or raised as counterclaims does not make them any less true, especially since the release also states that “Frazier denied
the claims.”

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there is no dispute that the title accurately summarizes the contents of the release, which is
to warn consumers to be cautious when dealing with Others First. There is simply nothing
actionable about the title of the release. As such, it cannot form a basis for an injurious
falsehood claim as a matter of law.
The same is true for the second challenged statement. Others First does not dispute
that it is a non-profit charity and that is was soliciting donations as described in the release,
and as described above there is nothing untrue about the statement that “the BBB advises
caution when dealing with Rick Frazier and the charity Others First.” To the extent
Others First argues that “advising caution” amounts to a defamatory statement -- and this
Court does not find that it does but will assume it only for purposes of deciding this motion
-- it is protected opinion and not actionable. “The test for an ostensible opinion is whether
a reasonable factfinder could conclude that the statement implies an assertion of objective
fact.” Kintz, 162 S.W.3d at 155 (citation omitted). Here, no reasonable factfinder could
conclude that an expression of caution conveys anything other than an opinion as it implies
no assertion of fact, objective or otherwise, and is not capable of being proved true or false.
See Castle Rock, 354 S.W.3d at 243 (affirming dismissal of defamation claim based on
BBB’s “C” rating of business as it is subjective opinion not capable of being proved true or
false). As such, even if it could be considered as having a defamatory meaning, it is
protected as opinion under the First Amendment and not actionable as a matter of law.
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As to the third challenged statement, Others First admits that it was seeking car
donations in the St. Louis area and it admits that it hired Frazier and his company to run its
car donation program. However, Others First claims that this statement is “absolutely
inaccurate and reckless” because it has no “ties to Mr. Frazier whatsoever in that Frazier
was not the founder of Others First.” Stripping the words of any pleaded innuendo and
construing them in context, with their plain and ordinarily understood meaning, the
statement that Others First has “ties” to Rick Frazier is not capable of a defamatory
meaning as a matter of law. Others First hired Frazier’s company to run its car donation
program, which is the ordinarily understood meaning of the word “ties” in this context.
This statement says nothing about Frazier founding Others First, and it is improper to read
this, or any defamatory innuendo, into this statement. Moreover, to the extent that Others
First bases its claim based on the statement that Frazier “has been criticized for alleged
improprieties in running similar programs” -- and the Court does not believe it can because,
as discussed above, this statement is not about Others First -- it is undisputedly true that
Frazier has been “criticized for alleged improprieties in running similar programs.”5
While Frazier (and Others First) may dispute the underlying merits of those criticisms,
there can be no doubt that they in fact exist. The release does not accuse Frazier of any
5

For brevity’s sake, and because these statements do not pertain to Others First, the Court has not set out the undisputed facts
underlying the accusations against Frazier. However, they are laid out in detail in the BBB’s motion papers (and the release
itself), and Others First’s attempts to challenge these facts as disputed fails. Again, that Frazier may contend he has or had
valid defenses to these claims and/or settled others does not negate the truthfulness of the fact that these accusations were made,
and that is all the release says -- that the accusations were made, not that they are true.

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improprieties and in fact reports that Frazier has denied claims of wrongdoing. That
Others First does not like the fact that the BBB chooses to inform readers that Frazier has
been accused by others of improprieties while running other charitable car donation
programs does not render the statement false or defamatory.
The same reasoning applies to the fourth challenged statement that “Mr. Frazier’s
past problems are reason to be cautious about his newest venture.” As the release is
accurately reporting what Corey said, in that respect it is true and not actionable.
However, Others First challenges the underlying content of Corey’s statement that Others
First is Frazier’s “newest venture” as “unequivocally false and . . . actionable.” Even if I
assume the underlying statement can be read to refer to Others First, these words -- when
stripped of any pleaded innuendo and construed in context with their plain and ordinarily
understood meaning -- are not capable of a defamatory meaning as a matter of law.
Others First hired Frazier’s company to run its car donation program, which is the
ordinarily understood meaning of the word “newest venture” in this context. Again, this
statement says nothing about Frazier founding Others First, and it is improper to read this,
or any defamatory innuendo, into this statement.
The fifth challenged statement -- “Corey also said it appears that a former associate
of Frazier, and perhaps even Frazier himself, may have potential conflicts of interest over
their involvement in the Others First donation program” -- is not actionable as protected
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opinion. Viewing this statement in the totality of the circumstances, a reasonable
factfinder would treat the statement as opinion and conclude that the statement does not
imply an assertion of objective fact. Kintz, 162 S.W.3d at 155; Ribaudo, 928 S.W.2d at
705. Again, as the release accurately reports what Corey said, it is true in that respect and
not actionable. The underlying statement also does not imply an assertion of objective
fact, as it is qualified by the language itself -- it “appears,” “perhaps,” and “may have.”
When this equivocal language is combined with the attribution of this statement to a
particular speaker, a reasonable factfinder would treat this statement as one of opinion and
not as the assertion of an objective fact.
Moreover, the underlying facts reported in the release that form the basis of Corey’s
protected opinion -- and the basis of Others First’s sixth challenge -- are true. The release
states that “Frazier and former co-worker Maurice E. Banks recently signed potentially
lucrative contracts to run vehicle donation programs for the charity. Frazier is described
in the media and on the website of an Others First charity as the charity’s founder, although
he denies that role. Banks is the previous treasurer of Others First.” Others First does not
challenge the description of the contracts as “potentially lucrative” or deny that Banks was
its previous treasurer. However, Others First vehemently denies that Frazier is its
“founder,” although it admits that he was described as such (albeit “erroneously”) in one of
its own press releases. Again, the release accurately reports how Frazier’s role was
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described in the media, and it also reports Frazier’s denial of that role. It does not assert
that Frazier was the founder of Others First, and these words -- when stripped of any
pleaded innuendo and construed in context with their plain and ordinarily understood
meaning -- are not capable of a defamatory meaning as a matter of law. The release goes
on to inform the reader that “Kennedy, president of Others First, said in a letter to the BBB
that Frazier has never been a board member or officer of Others First and any reference to
him as founder is ‘unauthorized and misguided.’ He added that because Banks resigned
from the Others First board before signing contracts with the charity, ‘there never was a
conflict of interest.’” As these statements are true, and the BBB’s related opinion
asserting potential conflicts of interest was based on these disclosed facts, neither the fifth
nor the sixth challenged statements are actionable as a matter of law. See Castle Rock,
354 S.W.3d at 242-43 (“Neither the nature of the information provided nor the language
used on BBB’s website would lead a reasonable person to believe that the rating is a
statement of actual fact . . .Although one may disagree with BBB’s evaluation of the
underlying facts, the rating itself cannot be proved true or false.”). For these reasons,
Others First’s injurious falsehood claim fails as a matter of law and must be dismissed.
Because Others First’s injurious falsehood claim fails as a matter of law, its related
tortious interference claim fails as well. The elements of intentional interference with
business expectancy are: 1) a contract or valid business relationship or expectancy; 2)
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knowledge by the defendant of the contract or relationship; 3) intentional interference by
the defendant which induces the breach of contract or relationship; 4) the absence of
justification; and 5) resulting damages. May, 863 S.W.2d at 947. Because the
underlying act must be wrongful, claims of intentional interference based upon defamatory
statements fail as a matter of law where there was no defamatory publication. May, 863
S.W.2d at 947; Castle Rock, 354 S.W.3d at 245 (“[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.”). As the alleged “wrongful act” is the publication of a
release that the Court has now concluded is not defamatory as a matter of law, the tortious
interference claim likewise fails. Id.

In its opposition papers, Others First attempts to

evade summary judgment on its tortious interference claim by arguing that it is also
claiming a “restraint on trade.” Others First’s amended complaint states no claims for a
restraint of trade, nor does its proposed second amended complaint. Merely alleging in its
proposed second amended complaint that the BBB’s continued publication of the release is
for an improper purpose, which “illegally and improperly restrain[s] trade,” does not
amount to stating a claim under either state or federal antitrust laws. Moreover, Others
First cannot bring its tortious interference claim based on the BBB’s continued
republication on Google (even if true) of a non-defamatory release or its alleged
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“inducement” of a television station to run a news story as a matter of law. Mere dislike
of, or disagreement with, a speaker’s point of view or its course of conduct is not a
sufficient basis upon which to state a tortious interference claim. There is no dispute here
that it was the television station, not the BBB, which aired the complained-of news report,
and there is no allegation or evidence that any spokesperson for the BBB was interviewed
for, or appeared in, the report. In the absence of any actionable “wrongful” conduct, the
tortious interference claim fails as a matter of law.
Finally, Others First spends a great deal of time and effort decrying the BBB’s
motives in publishing the release, claiming that its sole purpose was to unfairly advantage a
competitive charity and one of the BBB’s members. As stated above, statements of
opinion are protected even if made maliciously or insincerely. Ribaudo, 982 S.W.2d at
704. Here, the BBB’s release accurately reported facts and stated its opinions based on
those facts. If Others First dislikes the BBB’s opinions, its remedy lies where it found the
release -- in the free marketplace of ideas -- not in a court of law. As the release is true and
contains protected opinions, the BBB is entitled to judgment as a matter of law on all
counts of the amended complaint.
Accordingly,
IT IS HEREBY ORDERED defendant’s motion for summary judgment [#10] is
granted, defendant shall have summary judgment on all counts of plaintiff’s amended
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complaint, and plaintiff’s complaint is dismissed with prejudice.
IT IS FURTHER ORDERED that defendant’s alternative motion to dismiss [#8]
is denied as moot.
A separate Judgment in accordance with this Memorandum and Order is entered this
same date.

_______________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 24th day of April, 2015.

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