GILLON et al v. BERSTEIN

Filing 71

OPINION. Signed by Judge William J. Martini on 11/3/16. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

IRIS GILLON and IRIS GILLON MUSIC’N
CELEBRATIONS, LCC d/b/a IGMC,
Plaintiffs,

Civ. No. 2:12-4891 (WJM)

OPINION

v.
HONEY BERNSTEIN,
Defendant.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiffs Iris Gillon and Iris Gillon Music’N Celebrations, LLC bring this action
against Defendant Honey Bernstein, alleging seven common law counts, including libel,
product disparagement and false light. This matter comes before the Court on Defendant’s
motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. In response,
Plaintiffs cross-moved to admit their witness, Shane McMurray, as an expert witness
before this Court. There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set
forth below, Defendant’s motion is GRANTED in its entirety. Plaintiffs’ cross-motion is
DENIED and their claims are DISMISSED.
I.

BACKGROUND

This dispute arises out of a negative online consumer review posted by Defendant
Honey Bernstein on August 9, 2011. In her review, Defendant expressed her
dissatisfaction with the music planning services provided by Plaintiffs at her son’s
wedding. Plaintiffs allege that Defendant’s review was defamatory because it inaccurately
portrayed events that transpired the night of the wedding. Unless otherwise noted, the
following facts are undisputed.
A.

Gillon and IMGC

Plaintiffs in this case are Iris Gillon, a resident of Teaneck, New Jersey, and Iris
Gillon Music’N Celebrations, LLC (“IGMC”), a New Jersey limited liability company that

1

Gillon owns and operates. Gillon, through IGMC, is a self-described “event planner”1 who
specializes in booking music entertainment for both weddings and corporate events.
Statement of Material Facts in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Statement”) ¶ 2,
ECF No. 51. Gillon operates a number of websites, many of which tout the knowledge,
experience, and professionalism of IGMC. See, e.g., id. at ¶¶ 4–7.
IGMC promotional materials also indicate that, in connection with her work in the
wedding industry, Gillon has appeared on two television programs, “the Apprentice” and
“Platinum Wedding.” See id. at ¶ 3. At least with respect to her appearance on “the
Apprentice”, however, Gillon was not featured prominently, and she did not promote her
event planning business. See Pls.’ Resp. at ¶ 3. Moreover, while Defendant is correct in
stating that there are dozens of websites related to IGMC, Gillon created some of those
sites for the sole purpose of diverting internet traffic away from Defendant’s negative
review.2 See Pls.’ Supplemental Statement of Material Facts in Opp’n (“Pls.’ Statement”)
2–4, ECF No. 58.3
The record further shows that, at least with respect to the event planning industry,
Plaintiff has never written articles in trade publications, provided insight in seminar
settings, or maintained any role in industry associations. See Pls.’ Statement at ¶¶ 6–13.
Plaintiff also does not have any employees who assist her with the business—IGMC
therefore operates as a sole proprietorship, and its successes and failures are only felt by
Plaintiff. See Certification in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Cert.”), Ex. Q ¶¶
2–4, ECF No. 50. As evidenced by tax returns, Gillon and IGMC have experienced
inconsistent financial earnings since 2007. Specifically, IGMC reported the following net
profit figures between 2007 and 2013: $106,454.00 in 2007; $119,621.00 in 2008; a loss
of $56,579.00 in 2009; $73,899.00 in 2010; $21,496.00 in 2011; a loss of $5,181.00 in
2012; and $7,704.00 in 2013. See Def.’s Cert., Ex. W.
B.

Defendant’s Hiring of IGMC

In the early summer of 2011, Defendant sought to hire a music entertainment
company for her son’s wedding, which was to be held at her home in Goshen, New York.
See Def.’s Statement at ¶ 1. According to her testimony, Defendant came across IGMC in
the course of her internet research and was impressed with the promotional materials
featured on Gillon’s website. See id. at ¶ 10. The representations on the website inspired
Defendant to inquire with Gillon regarding the possibility of using IGMC for the wedding.
See id. at ¶ 11. After hashing out certain details, the parties entered into a “Music Producer
and Purchaser Agreement” (the “Agreement”), which provided that IGMC would produce,
supervise, and manage all music entertainment associated with the event. The
1

A jack of all trades, Gillon also represents that she has expertise as a composer, concert pianist, voice-over actress,
and author. See Pls.’ Responsive Statement of Material Facts (“Pls.’ Resp.”) ¶ 2, ECF No. 58.
2
This is commonly referred to as a “push down” strategy.
3
The Court notes that Plaintiff’s briefing, including her Statement of Material Facts, is confusing. For this reason,
the Court cites to page numbers instead of paragraph numbers when referencing Plaintiff’s Statement.

2

entertainment booked for the wedding included a DJ and a band named “Unanimous.” See
id. at ¶14; Def.’s Cert., Ex. J. The Agreement that provided the following, in pertinent
part:
 Total Performance Hours: 1 hr ceremony and arrivals Keys and Flue
(to begin no later than 7:45-8:45 pm)
 4 Hours Full Band w/DJ combo playing for the Reception (8:45 –
Ending 12:45 am)
 Music Detail: 5 Musicians Keyboards, Guitar-Vocals, Sax-Vocals, F.
Vocal and Congas Trumpet/Vocals and DJ
See Def.’s Cert., Ex. J.
On August 4, 2011, two days before the wedding date, Defendant emailed Gillon,
inquiring to the proper electrical specifications for the live music. See Def.’s Statement at
¶ 18; Def.’s Cert., Ex. I. Gillon responded within an hour, explaining that:
2x 20 amp line is enough for the ceremony
5 x 20 amp lines should do it for band and DJ both.
THAT IS wiring needed for two separate locations.
See Def.’s Cert., Ex. I. Defendant never relayed that information to her electrician,
however, who was hired to be present at the ceremony and ensure that all electricity-related
issues ran smoothly. See Pls.’ Statement at 28; Pls.’ Br. in Opp’n (“Pls.’ Opp’n”), Ex. D1, Drew Dep. 36:9–19.4
C.

The Wedding

The wedding reception and ceremony were both held at Defendant’s home on
August 6, 2011. Chaim Kurzman, the band leader for Unanimous, was the first band
member to arrive. See Def.’s Statement at ¶ 19. Upon arrival, Kurzman informed
Defendant that the amount of electricity that her electrician laid out was insufficient,
explaining that four circuits were needed to accommodate the needs of the band. See Def.’s
Statement at ¶ 20; Def.’s Cert., Ex. S, Drew Dep. 24:8-11. After receiving that information,
Defendant’s electrician hastily rearranged the electrical configurations so that enough

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During the course of discovery, the electrician offered the following testimony:
Q. Had you – you said that you never saw any electrical specifications from Iris?
A. I did not get any electrical specifications.
Q. And Ms. Bernstein never told you, hey, there’s some electrical specifications I got from the band planner?
A. No.
Q. Did she ever show you a printout with specifications on it?
A. No

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electricity would be available. See Def.’s Statement at ¶ 21; Def.’s Cert., Ex. S, Drew Dep.
24:13–25:22.
According to Defendant, the DJ and a female singer arrived shortly before the event
was to begin. See Def.’s Statement at ¶ 22. Defendant recalls seeing only three
performers—specifically, Kurzman, the DJ, and the female singer—on stage during the
wedding reception, which would have violated the Agreement that required a total of six
performers to appear. See id. at ¶ 23; Def.’s Cert., Ex. J. However, photographic stills
from a wedding video produced by Defendant in discovery show that in addition to the
three performers Defendant recalls, the stage was also occupied by a saxophonist, a
guitarist, and a keyboardist. See Pls.’ Opp’n at 11, Exs. PH-1–PH-11; Pls.’ Statement at
23. Some of the stills also appear to show Defendant dancing in front of the stage with all
six performers present. See, e.g., Pls.’ Opp’n, Exs. PH, PH-1, PH-4. Additionally, for the
purposes of the instant motion, certain band members have submitted affidavits explaining
that all six musicians were present during the reception. See Pls.’ Opp’n, Ex. A-1, Kurzman
Aff. ¶ 6; Ex. A-2, V. Cuccia Aff. ¶ 6; Ex. A-3, L. Cuccia Aff. ¶ 6.5
According to Defendant, the band fell woefully short of matching the impressive
ensembles showcased in IGMC’s promotional materials. See Def.’s Statement at ¶ 24. At
various points during the band’s performance, Defendant expressed her dissatisfaction to
the performers. See id. at ¶ 25. Ultimately, Defendant became convinced that the band
was detracting from the tenor of the reception. Accordingly, she instructed the band to
cease playing, and substituted their music with her own iPod playlist. See id.
D.

The Posting

Three days after the reception, on August 9, 2011, Defendant decided to post an
online review of IGMC. Defendant explained that she wished to write “‘an honest posting’
of opinion about the quality of services actually received.” See id. at ¶ 26 (quoting Def.’s
Cert., Ex. A, Bernstein Dep. 81:13–14). After perusing various websites for roughly
twenty minutes, Defendant decided to post her review on a website called “Ripoff Report.”6
Defendant’s review stated the following:
iris gillon, igmc Way below Par service – did not get what was contracted
for Internet
iris gillon and igmc did not deliver acceptable service. Iris is a marketeer par
excellence – an unusually good salesperson with an impressive and wellThe Court notes Defendant’s objections to these affidavits. See Def.’s Reply to Pls.’ Resp. to Mot. for Summ. J.
(“Def.’s Reply”) 7, ECF No. 63. Plaintiff is well within her legal rights to offer eye-witness accounts of relevant
events in the form of affidavits to oppose the instant motion. See Fed. R. Civ. P. 56(c)(4). New Jersey rules require
that such affidavits “shall be restricted to statements of fact within the personal knowledge of the signatory.” N.J. Loc.
Civ. R. 7.2(a). The Court will disregard any and all argument and legal conclusion contained in the affidavits, and
will consider them only for the factual content to which each affiant could reasonably be called upon to testify.
6
See http://www.ripoffreport.com/.
5

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designed website. Don’t let these things fool you. My son got married this
past weekend and (1) the singer was awful (2) the number of musicians
promised did not show up (3) the band leader had no personality whatsoever
and though he tried hard to please, could not read the crowd. the band’s
electrical requirements that iris sent me were all wrong and my electrician,
at an enormous additional expense, had to work the night of the party, in the
rain, to make sure that there was enough power. also, notice how the
rebuttals to the first complaint are from employees. i wonder why that is? I
would never, ever recommend using this company.
Pls.’ Opp’n, Ex. R-2. Two days after posting her review, Defendant sent Plaintiff a strongly
worded e-mail further expressing her tremendous disappointment with IGMC’s services.
See id., Ex. E-1. In her e-mail, Defendant warned, “I plan to post my opinion in as many
places online as i [sic] can find.” Id.
E.

Plaintiffs’ Lawsuit

On August 3, 2012, Plaintiffs filed the instant action, which alleges that Defendant’s
August 9, 2011 posting was defamatory. In their initial filing, Plaintiffs alleged that the
defamatory posting caused IGMC and Gillon professional and reputational harm, while
also causing Gillon to suffer severe emotional trauma. See Compl. ¶¶ 59–72, Aug. 3, 2012,
ECF No. 1. Based on those allegations, the complaint asserted the following causes of
action:
Count I – Libel;
Count II – Libel Per Se;
Count III – Libel Innuendo;
Count IV – Injurious Falsehood;
Count V – Defamatory Injury to Reputation;
Count VI – Product Disparagement; and
Count VII – False Light.7
Id. at ¶¶ 73–116.
On September 12, 2013, this Court issued an opinion and order granting in part and
denying in part Defendant’s motion to dismiss the amended complaint. See Op., ECF No.
16. The Court ruled that the posting largely contained non-actionable expressions of
7

Plaintiffs later filed an amended complaint that included the seventh count for false light. Am. Compl. ¶¶ 176–82,
Jan. 16, 2013, ECF No. 5.

5

opinion. Consequently, any claims that related to those subjective statements were
dismissed with prejudice. Id. at 4. However, it concluded that two of the posting’s factual
statements, in isolation, could form the basis of a defamation claim. Those statements are
the following:
The Musicians Statement: “[T]he number of musicians promised did
not show up[.]”
The Electricians Statement: “The bands [sic] electrical requirements
that Iris sent me were all wrong and my electrician, at an enormous
additional expense, had to work the night of the party, in the rain, to
make sure there was enough power.”
Id. at 4–5.
With respect to the two factual statements described above, the Court dismissed
certain counts without prejudice for failure to state a claim upon which relief could be
granted. See id. at 5–7. Plaintiffs responded by submitting a second amended complaint,
which included additional allegations relevant to the Musicians Statement and the
Electricians Statement. See Am. Compl. (“Second Am. Compl.”) ¶¶ 83–90, Jan. 17, 2014,
ECF. No. 21. Rather than file a second motion to dismiss, Defendant decided to proceed
with discovery.
After engaging in discovery, Defendant filed the instant motion for summary
judgment. Defendant argues that summary judgment is warranted because Plaintiffs are
limited public figures, which means their claims can succeed only if Defendant acted with
actual malice when posting her review. See Def.’s Legal Br. in Supp. of Mot. for Summ.
J. (“Def.’s Br.”) 4–13, ECF No. 50. Defendant further argues that even if Plaintiffs were
purely private figures, they have not produced sufficient evidence demonstrating that the
posting was made negligently. See id. at 13–14. Finally, Defendant offers other arguments
for why she is entitled to summary judgment, including that the record is void of any
evidence showing that Plaintiffs have suffered damages. See id. at 14–25. Plaintiffs
oppose Defendant’s motion.

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II.

LEGAL STANDARD

“A federal court sitting in diversity must apply state substantive law and federal
procedural law.” Chamberlain v. Giampapa, 210 F.3d 154, 158 (3rd Cir. 2000) (citing
Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). Federal Rule of Civil Procedure 56
provides for summary judgment “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A factual dispute is genuine if a reasonable jury could find for the nonmoving party, and is material if it will affect the outcome of the trial under governing
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A party must
support its position by citing to “materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations[,] . . . admissions,
interrogatory answers, or other materials . . . .” Fed. R. Civ. P. 56(c); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court considers the record in the light
most favorable to the non-moving party while drawing all reasonable inferences in that
party's favor. Bowers v. NCAA, 475 F.3d 524, 535 (3rd Cir. 2007).
III.

DISCUSSION

As an initial matter, in its order on September 12, 2016, this Court noticed the parties
that it intended to treat Counts I (libel), III (libel innuendo), and V (defamatory injury to
reputation) as a single claim of libel due to the parties’ failure to distinguish each individual
cause of action.8 See Order 1, ECF No. 68. Neither party has offered a compelling reason
why these counts should not be consolidated and, therefore, the Court will collectively
consider them as a single claim of libel.
In that same order, the Court raised the New Jersey Supreme Court’s decision in
Dairy Stores, Inc. v. Sentinel Publ’g Co., Inc., 104 N.J. 125 (1986), and requested
supplemental briefing from both parties to address the following issues: (1) whether the
statements at issue impute to Plaintiffs fraud, dishonesty, or reprehensible conduct in
relation to Plaintiffs’ services; (2) whether, in light of Dairy Stores, Inc. and related
authority, Counts I, III, and V seek to vindicate rights protected by the law of product
disparagement, as opposed to defamation; and (3) assuming those counts do sound
exclusively in product disparagement, whether Defendant is entitled to summary judgment
on those counts. See Order at 2. The Court will first address whether Plaintiffs’ claim for
defamation overlaps with her claim for product disparagement before turning to the
remaining counts.

Cf. Benton v. State, 59 N.J.L. 551, 556 (1897) (“But the doctrine is well settled that, when the plain, natural meaning
of the word is libelous, no innuendo is required.”).
8

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A.

Defamation vs. Product Disparagement

Under New Jersey law, “‘[a] statement is defamatory if it is false, communicated to
a third person, and tends to lower the subject’s reputation in the estimation of the
community or to deter third persons from associating with him.’” W.J.A. v. D.A., 210 N.J.
229, 238 (2012) (quoting Lynch v. N.J. Educ. Ass’n, 161 N.J. 152, 164–65 (1999)). Libel
is “defamation by written or printed words, or by the embodiment of the communication
in some tangible or physical form . . . .” See id.
New Jersey law also recognizes an action for product disparagement, sometimes
referred to as trade libel, which is a statement consisting of four elements: (1) publication;
(2) with malice; (3) of false allegations concerning plaintiff’s property or product; and (4)
causing special damages, i.e., pecuniary harm. See Sys. Operations, Inc. v. Scientific
Games Dev. Corp., 555 F.2d 1131, 1140 (3rd Cir. 1977); Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 919 F. Supp. 756, 762 (D.N.J. 1996) (“In most contexts,
‘trade libel’ is essentially another name for the same cause of action.”).
In juxtaposing defamation with product disparagement, the Supreme Court of New
Jersey found the following:
Although the two causes sometimes overlap, actions for defamation and
product disparagement stem from different branches of tort law. A
defamation action, which encompasses libel and slander, affords a remedy
for damage to one’s reputation. By comparison, an action for product
disparagement is an offshoot of the cause of action for interference with
contractual relations, such as sales to a prospective buyer. The two causes
may merge when a disparaging statement about a product reflects on the
reputation of the business that made, distributed, or sold it. If, for
example, a statement about the poor quality of a product implies that the
seller is fraudulent, then the statement may be actionable under both
theories. Courts generally are reluctant to impute a lack of integrity to a
corporation merely from a criticism of its product.
Dairy Stores, 104 N.J. at 133–34 (citations omitted). In a concurring opinion, Justice
Garibaldi further expounded on the distinction:
The elements of proof for product disparagement are much more stringent
than those for defamation. Therefore, courts generally have been reluctant
to find that a disparaging statement that merely criticizes a product is also
defamatory. Defamation is found only where the imputation fairly
implied is that the plaintiff is dishonest or lacking integrity, or that he is
deliberately perpetrating fraud upon the public by selling a product which
he knows to be defective. Thus, unless the disparaging statement
explicitly imputes to the corporation fraud, deceit, dishonesty, or
8

reprehensible conduct in relation to the product, courts will not deem a
merely critical statement to be defamatory.
Id. at 159 (Garibaldi, J., concurring) (citations and quotations omitted); see also N.J. Auto.
Ins. Plan v. Sciarra, 103 F. Supp. 2d 388, 408–09 (D.N.J. 1998) (“Additionally, the court
again notes that statements charging personal misconduct or reprehensible personal
characteristics at most are defamatory and are not actionable as product disparagement.”)
(internal quotations omitted); Patel v. Soriano, 369 N.J. Super. 192, 247–48 (App. Div.
2004) (“Interference by falsehoods that cause pecuniary loss, but are not personally
defamatory, has been regarded as a tort more or less distinct from defamation.”) (internal
quotations omitted). For the purposes of this case, it is important to note that this distinction
applies to corporations that provide services in addition to those that sell tangible goods.
See Mayflower Transit, LLC v. Prince, 314 F. Supp. 2d 362, 377–79 (D.N.J. 2004)
(distinguishing between defamation and product disparagement in a case involving a
corporation that provided moving, shipping and storage services); Coll. Sav. Bank, 919 F.
Supp. at 762 (“If the statement impugns a product or service, it will be treated as an
injurious falsehood . . . .”) (emphasis added).
Courts acknowledge that a single statement may simultaneously satisfy the elements
of both defamation and product disparagement. See Dairy Stores, 104 N.J. at 133; Patel,
369 N.J. Super. at 248 (“Many statements effectuate both harms.”). A claim for defamation
will not survive, however, “unless the disparaging statement explicitly imputes to the
corporation fraud, deceit, dishonesty, or reprehensible conduct in relation to the product . .
. .” See Dairy Stores, 104 N.J. at 159 (Garibaldi, J., concurring); see also Sciarra, 103 F.
Supp. 2d at 409 (quoting Dairy Stores, 104 N.J. at 158–59 (Garibaldi, J., concurring
opinion)); Patel, 369 N.J. Super. at 248 (“No personal defamation will be found where the
most that can be made out of the words is a charge of ignorance or negligence.”) (internal
quotations omitted). Likewise, a claim for product disparagement will not survive where
the statement only “casts aspersions on the reputation of an individual’s reputation [sic],
rather than his product or service . . . .” See Coll. Sav. Bank, 919 F. Supp. at 762.
With this distinction in mind, the critical question before the Court is whether the
two remaining statements from Defendant’s posting on August 9, 2011, impute to Plaintiffs
“fraud, deceit, dishonesty, or reprehensible conduct” or whether the statements are merely
critical of Plaintiffs’ services. The Court will consider each in kind.
1.

The Musicians Statement

The Musicians Statement simply states that the number of musicians that were
contracted to appear at the wedding did not actually appear. This statement suggests
Plaintiffs’ failure to fulfill their contractual obligations. At best, the statement imputes
incompetence to Plaintiffs in their inability to provide wedding services; however,
incompetence does not rise to the level of defamation. See Patel, 369 N.J. Super. at 248
9

(“Some accusation of incompetence may be implied in imputations directed against a
business or its product.”). The statement does not suggest that Plaintiffs deceived
Defendant or intentionally perpetrated some other harm by sending fewer musicians than
were contractually required. Cf. Dairy Stores, 104 N.J. at 134–35 (finding that statement
defamed plaintiff “by implying that it was trying to hide something”). It does not impute
“fraud, deceit, dishonesty or reprehensible conduct” to Gillon as an individual or to her
corporation. See id. at 159 (Garibaldi, J., concurring). The statement, therefore, sounds
exclusively in product disparagement and cannot be considered defamatory because it only
criticizes Plaintiffs’ services. See id. at 134 (“Courts generally are reluctant to impute a
lack of integrity to a corporation merely from a criticism of its product.”).
2.

The Electricians Statement

The Electricians Statement states that Plaintiffs gave Defendant the wrong
information concerning the electrical specifications required for the band’s performance,
which caused Defendant to incur additional expenses by having her electrician fix the
problem. Similar to the Musicians Statement, this statement imputes incompetence to
Plaintiffs’ services, but it does not suggest that Plaintiffs intentionally provided the wrong
specifications to perpetrate fraud, deceit or some other reprehensible behavior. It,
therefore, sounds exclusively in product disparagement and cannot be considered
defamatory because it only criticizes Plaintiffs’ services. See id.
Accordingly, summary judgment is GRANTED for Defendant against Plaintiffs’
defamation claim and Counts I, III and V are DISMISSED.
B.

Product Disparagement and Injurious Falsehood

The Court now turns to the merits of Plaintiffs’ product disparagement claim. At
the outset, it is important to note that New Jersey law recognizes product disparagement as
a cause of action emanating from the more general tort of injurious falsehood. See Sys.
Operations, 555 F.2d at 1138 n.6 (“Product disparagement and slander of title are grouped
together . . . under the more general term ‘injurious falsehood,’ . . . .”) (internal citations
omitted); Coll. Sav. Bank, 919 F. Supp. at 762 (“Trade libel and product [disparagement]
lie within the general rubric of the tort injurious falsehood . . . .”).
The Restatement (Second) of Torts defines injurious falsehood as:
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.
10

RESTATEMENT (SECOND) OF TORTS § 623A (1977). Section 626 of the Restatement applies
the same rules of liability “to the publication of matter disparaging the quality of another’s
land, chattels or intangible things . . . .” See id. § 626. In other words, product
disparagement is another form of injurious falsehood that requires the same elements of
proof, including a showing of malice and pecuniary harm. See Dairy Stores, 104 N.J. at
161 n.3 (Garibaldi, J., concurring). For this reason, the Court will consider Counts IV and
VI as a single claim for product disparagement. The Court will now address each of the
four elements of Plaintiffs’ claim to the two statements in question.
1.

Publication

Both statements clearly satisfy the element of publication by virtue of the fact that
Defendant posted them on the Ripoff Report website. See Mayflower Transit, 314 F. Supp.
2d at 365, 378 (finding that publication prong had been met where statements in question
were posted to the internet).
2.

Malice

To satisfy the element of malice, “Plaintiff must demonstrate that Defendant’s
statements were false or that they were written with reckless disregard for the truth or
falsity.” See id. (citing Juliano v. ITT Corp., No. 90-cv-1575, 1991 WL 10023, at *5
(D.N.J. Jan. 22, 1991)).
Regarding the Musicians Statement, Plaintiffs produced at least two photographs
purportedly showing six performers playing music with Defendant dancing directly in front
of them. Pls.’ Opp’n, Ex. PH. Plaintiffs also produced multiple photographs purportedly
showing Defendant in close proximity to the performers that she claimed did not appear.
Id., Exs. PH-1–PH11.9 Additionally, Plaintiffs produced three affidavits from band
members who attended the wedding, claiming that all six performers appeared and were
ready to perform as agreed upon. Id., Ex. A-1 at ¶ 6; A-2 at ¶ 6; A-3 at ¶ 6. Viewing this
evidence in the light most favorable to the non-moving party, the Court finds that a jury
could reasonably decide that Defendant knew of or recklessly disregarded the fact that six
performers appeared at the reception when she posted the Musicians Statement.
Regarding the Electricians Statement, it is undisputed that Plaintiffs provided
Defendant with some electrical specifications in an email two days prior to the wedding.
Pls.’ Opp’n, Ex. E-6; Def.’s Cert., Ex. I. At his deposition, Defendant’s electrician testified
that Defendant never provided him with the specifications at any point prior to the wedding.
Pls.’ Opp’n, Ex. D-1, Drew Dep. 36:9–22. Furthermore, apparently in reference to
Defendant objects to the “never-before produced narrative photographs” as lacking authenticity, but Plaintiffs are
not required to produce evidence at summary judgment in the same manner as they will at trial. See Celotex Corp.,
477 U.S. at 324. Furthermore, Plaintiffs claim that the photographs are stills from a video of the wedding produced
by Defendant in discovery, which, if true, would render Defendant’s objection disingenuous. Pls.’ Opp’n at 11.
9

11

Plaintiffs’ email, he testified that “[f]our [amp lines] was adequate to cover the needs, it
worked.”10 See id., Ex. D-1 at 34:5–9. At her own deposition, Defendant testified that she
could not remember whether she forwarded the specifications to her electrician and she
admitted that she had “no idea” what the specifications meant. See Def.’s Cert., Ex. A,
Bernstein Dep., 88:19–89:25; 93:15–94:16. Finally, the band leader stated in his affidavit
that he confirmed the correct specifications to Defendant’s wedding planner on a
conference call prior to the wedding and that those specifications were the exact same ones
communicated in Plaintiffs’ email. Pls.’ Opp’n, Ex. A-1 at ¶ 8. It is clear, therefore, that
Defendant did not know whether the specifications she received were in fact wrong and a
jury could reasonably find that, at a minimum, she recklessly disregarded the truth when
she posted the Electricians Statement. The malice element is satisfied for both statements.
3.

False Allegations Concerning Plaintiffs’ Services

Plaintiffs have satisfied the falsity element of both statements. Concerning the
Musicians Statement, Plaintiffs’ exhibits clearly show that six performers attended the
wedding and performed. See Pls.’ Opp’n, Ex. PH–PH-11. Concerning the Electricians
Statement, both the electrician and the band leader declared that the specifications in
Plaintiffs’ email adequately met the needs of the band. See id., Exs. A-1 at ¶ 8; D-1 at
34:5–9. Viewing the evidence in the light most favorable to the non-moving party, the
falsity element is satisfied for both statements.
4.

Special Damages

Unlike in the defamation context where damages are presumed, Plaintiffs must
show special damages directly caused by the statements in question to complete their
product disparagement claim. See Sys. Operations, 555 F.2d at 1140 (“‘The action requires
special damages in all cases, unlike defamation.’”) (quoting Henry V. Vaccaro Constr. Co.
v. A.J. DePace, Inc., 137 N.J. Super. 512, 517 (Law Div. 1975)). The Supreme Court of
New Jersey defines special damages as a subcategory of actual or compensatory damages
that “compensate a plaintiff for specific economic or pecuniary loss.” See Nuwave Inv.
Corp. v. Hyman Beck & Co., Inc., 221 N.J. 495, 499 (2015) (citations omitted). To show
special damages, Plaintiff must “allege either loss of particular customers by name, or a
general diminution of business, and extrinsic facts showing that such special damages were
the natural and direct result of the false publication.” See Bocobo v. Radiology Consultants
of S. Jersey, P.A., 477 Fed. App’x 890, 901 (3rd Cir. 2012) (internal quotations omitted).
In their second amended complaint, Plaintiffs appear to allege damages based on
the loss of one customer and on the general diminution of IGMC’s business. See Second
Am. Compl. at ¶¶ 112–24. With respect to the lost customer, Plaintiffs allege that an
10

The excerpts from the deposition transcript provided by Plaintiff do not confirm what the deponent is referring to,
but it seems clear from the context that he is referring to the 20 amp lines in Plaintiffs’ email.

12

individual canceled a contract with IGMC due to Defendant’s posting and Plaintiffs were
forced to issue a refund of $3,700.00. See id. at ¶ 121. At summary judgment, Plaintiffs
submitted a document which they claim is a voided contract related to that lost customer.
See Pls.’ Opp’n, Ex. C-5. The document shows a contract with IGMC to provide for the
performance of the band “Essence” in return for a $7,400.00 fee and a holding deposit of
$3,700.00; however, for reasons unknown to the Court, the names of the other contracting
parties are redacted. Id. The document, therefore, does not satisfy the requirement that
Plaintiffs allege the “loss of particular customers by name . . . .” See Bocobo, 477 Fed.
App’x at 901; Graco Inc. v. PMC Global, Inc., No. 08-cv-1304, 2012 WL 762448, at *15
(D.N.J. Mar. 6, 2012) (dismissing Plaintiff’s trade libel claim because it failed to identify
specific lost customers).
The remaining damages claims, with the exception of emotional damages, fall under
general diminution of business.11 When predicating a damages claim on the general
diminution of business, Plaintiff must provide “‘facts showing an established business, the
amount of sales for a substantial period preceding publication, the amount of sales for a
[period] subsequent to the publication, facts showing that such loss in sales were the natural
and probable result of such publication, and facts showing the plaintiff could not allege the
names of particular customers who withdrew or withheld their custom.’” See Mayflower
Transit, 314 F. Supp. 2d at 378 (quoting Juliano v. ITT Corp., No. 90-cv-1575, 1991 WL
10023, at *6 (D.N.J. Jan. 22, 1991)). Importantly for the instant motion, Plaintiffs must
show that their general loss of business “was a direct result of Defendant[’s] purportedly
[disparaging] statements.” See Bocobo, 477 Fed. App’x at 901 (emphasis original)
(dismissing plaintiff’s trade libel claim, in part, for failure to show that difference in salary
was a direct result of defendants’ statements); Mayflower Transit, 314 F. Supp. 2d at 378–
79 (denying summary judgment for plaintiff where it failed to show that its loss was
directly caused by defendant’s statements).
Plaintiffs produced portions of tax returns from 2005 through 2011, showing
IGMC’s gross income for those years but with all other information redacted from the
documents, apparently because Plaintiffs want the Court to focus only on gross income.12
See Pls.’ Opp’n, Ex. T-1. Defendant submitted more reliable versions of IGMC’s tax
returns from 2007 through 2013. See Def.’s Cert., Ex. W. While these documents show a
substantial drop in IGMC’s gross income between 2010, the last full year before
Defendant’s posting, and 2012, the first full year after Defendant’s posting, they do not
conclusively establish a diminution of business directly caused by Defendant’s statements.
See id. Gross income is not the only relevant figure to diminution. Expenses, net income
and other figures might provide further insight into the fluctuation of a company’s dealings
“[P]ersonal elements of damages, such as mental distress, are strictly excluded” in a product disparagement claim.
See Patel, 369 N.J. Super. at 249.
12
Plaintiffs also apparently produced similar documents for 2012, 2013 and 2014 in an exhibit labeled “Separate Tax
Exhibits.” After thoroughly searching Plaintiffs’ briefing papers and the rest of the docket, the Court is unable to
locate this exhibit and, therefore, cannot consider it.
11

13

from year to year, which might provide alternative explanations as to why IGMC’s
business diminished. As noted above, IGMC’s net income fluctuated greatly from year to
year, even before Defendant posted her statements. See supra Part I.A.
Plaintiffs also produced a so-called “expert opinion letter” from Shane McMurray
(“McMurray Opinion” or “Opinion”), the CEO and founder of a company called The
Wedding Report, Inc. See Pls.’ Opp’n, Ex. A-7. In the Opinion, Mr. McMurray concludes
that “the prominence of the Bernstein posting has caused and will continue to cause
significant injury to IGMC’s business, in the amount of $250,000-$300,000 gross collected
commissions on band and catering sales, and a personal income loss for Iris Gillon after
re-investing her commissions into her company of $100,000-$110,000 [per] [sic] year.”
See id. at 1. Plaintiffs offer Mr. McMurray as an expert in the wedding industry who “is
ideally positioned to detangle any change in the economy from the drop in Ms. Gillon’s
business.” See Pls.’ Opp’n at 32. In other words, Mr. McMurray possesses the requisite
knowledge and economic expertise to conclusively establish that Defendant’s statements
caused the diminution of IGMC’s business and to exclude all other possible causes,
including macroeconomic conditions, that might generally impact Plaintiffs’ business. Mr.
McMurray apparently provided a curriculum vitae and over 300 pages of other reports in
support of his Opinion, but Plaintiffs failed to submit any of these documents. See Pls.’
Opp’n at 32–33, Ex. A-7. Nevertheless, Plaintiffs moved this Court to admit the McMurray
Opinion as an expert opinion. Pls.’ Opp’n at 32–33.
“Federal courts apply the federal rules for procedure and evidence when sitting in
diversity.” Vaccaro v. HJC Am., Inc., No. 04-cv-3480, 2007 WL 2990759, at *2 (D.N.J.
Oct. 9, 2007) (citing Chamberlain, 210 F.3d at 158). The Third Circuit has held that the
Federal Rules of Evidence are procedural in nature and apply to diversity cases. See Salas
by Salas v. Wang, 846 F.2d 897, 903–906 (3rd Cir. 1988). The Court will, therefore,
consider the McMurray Opinion pursuant to the federal rules governing expert testimony.
Rule 702 provides that an expert witness’s testimony is admissible if: “(a) the
expert’s . . . specialized knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. “The Rule
. . . ‘establishes a standard of evidentiary reliability.’” Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 149 (1999) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
590 (1993)). In assessing the reliability of an expert’s opinion, “the test is whether the
‘particular opinion is based on valid reasoning and reliable methodology.’” See In re
Urethane Antitrust Litig., 152 F. Supp. 3d 357, 360 (D.N.J. 2016) (quoting Oddi v. Ford
Motor Co., 234 F.3d 136, 145–46 (3rd Cir. 2000)). “The proponent of expert evidence
must demonstrate its admissibility by a preponderance of the evidence.” Id. (citing
Daubert, 509 U.S. at 593 n.10). Plaintiffs, therefore, must demonstrate the admissibility
of the McMurray Opinion by a preponderance of the evidence. See id.
14

Plaintiffs ostensibly offer the McMurray Opinion as an expert opinion on the
economic damages caused by Defendant’s statements, in support of their business
diminution claim. Unfortunately for Plaintiffs, however, they have failed to provide any
indicia of reliability regarding the Opinion. Plaintiffs failed to provide any information
addressing Mr. McMurray’s educational or professional background, which could support
his qualifications as an economics and wedding industry expert. The Opinion states that
Mr. McMurray is the CEO of a company that “collects and publishes detailed statistics on
spending in the wedding industry,” but it provides no information as to how the statistics
are compiled and analyzed, or how Mr. McMurray’s experience qualifies him to opine on
the deleterious effect of negative internet postings to businesses. See Pls.’ Opp’n, Ex. A-7
at 1. Mr. McMurray states that “[t]he basis for my opinion is my familiarity with these
reports,” and that “[t]he methodology of our data collection is explained in our report.” As
stated above, however, Plaintiffs failed to provide even a single page of these reports.
Concerning the methodology employed to assess IGMC’s business, Mr. McMurray
states that he “reviewed IGMC’s Profit & Loss statements for years 2007-13 and a
summary of her Band and Catering sales since 2004.” See id. He also “viewed the
defamatory posting on the Ripoff Report website and the listing of this posting in the top
5 of Google results for IGMC.” See id. The Opinion provides no explanation as to how
Mr. McMurray applied this information to reach his conclusions. The Opinion also states
that the decreases in IGMC’s business “cannot be accounted for by changes in the wedding
industry, either nationally or locally. Nor by changes in these sub-areas of wedding
spending, which were stable as shown in the attached Wedding Industry Report [sic].” This
conclusion is apparently supported by statistics in another report not provided to the Court,
and it fails to explain which “sub-areas” it refers to and what their relevance might be. See
id. Likewise, the Opinion asserts that “[i]nternet research is increasingly central to
couples,” citing statistics purportedly showing an increase in internet usage to plan
weddings and a supposedly correlated increase in wedding spending. Again, the Opinion
provides no explanation as to how these statistics are intrinsically linked or from which
unattached report they emanate. See id. Finally, the Opinion concludes that “[a] single
negative report that appears prominently in Google Search will cause couples to bypass
that vendor to seek another.” See id. This statement is unsupported.
In sum, Plaintiffs fall woefully short in demonstrating to the Court how the
McMurray Opinion is reliable pursuant to Rule 702 because they failed to show how it “is
based on valid reasoning and reliable methodology.” See Fed. R. Evid. 702; Urethane
Antitrust Litig., 152 F. Supp. 3d at 360; see also Krys v. Aaron, 112 F. Supp. 3d 181, 189
(D.N.J. 2015) (“The reliability restriction requires that the testimony be based upon the
methods and procedures . . . rather than on subjective belief or unsupported speculation
and that the expert have good grounds for his or her belief.”) (internal quotations omitted).
The Court denies Plaintiffs’ request to admit the McMurray Opinion. Consequently,
Plaintiffs cannot show that the diminution of IGMC’s business was directly caused by
15

Defendant’s statements and has failed to show special damages. Thus, Plaintiffs’ product
disparagement claim must fail. See Bocobo, 477 Fed. App’x at 901; Mayflower Transit,
314 F. Supp. 2d at 378–79.
Accordingly, summary judgment is GRANTED for Defendant against Plaintiffs
and Counts IV and VI are DISMISSED.13
C.

Libel Per Se

The Court now turns to Plaintiffs’ claim of libel per se (Count II). The Supreme
Court of New Jersey acknowledges the term libel per se as a writing that is defamatory on
its face, which is distinguished from a writing that is defamatory solely in light of extrinsic
facts (libel per quod). See Lawrence v. Bauer Publ’g & Printing Ltd., 89 N.J. 451, 459
(1982) (citing Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 443 (App.
Div. 1958)). “A determination of whether certain language is defamatory on its face rests
within the power of the trial court.” Id. (citing Leers v. Green, 24 N.J. 239, 255 (1957)).
“Only when the court finds the words to be capable of both a defamatory and a
nondefamatory meaning does a question of fact arise for the jury to decide.” Id. (citing
Herrmann, 48 N.J. Super. at 430).
As a point of clarification, the Court finds that the state and federal case law, on
balance, supports a differentiation between the doctrines of libel per se and slander per se.
See, e.g., Ciemniecki v. Parker McCay P.A., No. 09-cv-6450, 2010 WL 2326209, at *10
(D.N.J. June 7, 2010) (“As an initial matter, this argument appears to confuse two distinct
concepts in defamation law, namely “defamation per se” and “slander per se.”). As such,
the critical inquiry under the libel per se doctrine is not whether the statements in question
fit into one of the four traditional categories of slander per se.14 Rather, the critical inquiry
is whether the statement in question is defamatory on its face and, therefore, actionable
without further factual support; or whether the statement requires extrinsic facts to establish
its defamatory nature. See Lawrence, 89 N.J. at 459; Biondi v. Nassimos, 300 N.J. Super.
148, 153 n.2 (App. Div. 1997) (“The term ‘defamation per se’ refers to a statement whose
defamatory meaning is so clear on its face that the court is not required to submit the issue
to the jury.”) (citation omitted); see also Shaw v. Bender, 90 N.J.L. 147, 149 (N.J. 1917)
(“Whenever words clearly sound to the disreputation of the plaintiff, there is no need of
further proof; they are defamatory on their face and actionable per se.”) (internal quotation
omitted).
13

Regarding the voided contract, the Court notes that Plaintiffs may have a viable claim for product disparagement in
state court, provided that they can properly identify the other contracting parties. The action cannot continue in this
Court, however, because it fails to meet the $75,000.00 threshold amount required for this Court to exercise
supplemental jurisdiction. 28 U.S.C. §§ 1332(a), 1367(c)(3).
14
The four recognized categories of slander per se are “statements that impute (1) commission of a crime, (2)
contraction of a loathsome disease, (3) occupational incompetence or misconduct, and (4) unchastity of a woman.”
See Ward v. Zelikovsky, 136 N.J. 516, 526 (1994) (citing Gnapinsky v. Goldyn, 23 N.J. 243, 250–51 (1957)).

16

The Court’s previous analysis of defamation and product disparagement is helpful
here. The defamatory nature of both the Musicians and Electricians Statements is
contingent upon whether the facts asserted therein were actually false. See W.J.A., 210
N.J. at 238 (“[A] statement is defamatory if it is false . . . .”). As noted above, the falsity
element is satisfied for the purposes of summary judgment; however, both statements
require extrinsic facts to prove their falsity. See supra Part III.B.2–3. Furthermore, the
Court’s determination that the statements sound exclusively in product disparagement
instead of defamation warrants consideration here. See supra Part III.A. It stands to reason
that if the statements are not libelous because they do not explicitly impute to the
corporation “fraud, deceit, dishonesty, or reprehensible conduct in relation to the product,”
then those same statements are also not libelous per se. See Dairy Stores, 104 N.J. at 159
(Garibaldi, J., concurring); Biondi, 300 N.J. Super. at 153 n.10. Indeed, both the Musicians
and Electricians Statements are capable of defamatory and nondefamatory interpretations
by virtue of the fact that their purported defamatory nature is contingent upon knowledge
of extrinsic facts. Consequently, neither statement can meet the definition of libel per se
because neither is defamatory on its face. See Lawrence, 89 N.J. at 459; see also Schiavone
Constr. Co. v. Time, Inc., 619 F. Supp. 684, 694 (D.N.J. 1985) (construing defamation per
se as a statement “that is not reasonably susceptible of a nondefamatory interpretation”).
Accordingly, summary judgment is GRANTED for Defendant against Plaintiffs’
libel per se claim and Count II is DISMISSED.
D.

False Light

The Court now turns to Plaintiffs’ final count of false light (Count VII). Under New
Jersey law, false light is a cause of action arising out of the greater tort of invasion of
privacy. See Romaine v. Kallinger, 109 N.J. 282, 293 (1988). The law closely follows the
Restatement (Second) definition:
One who gives publicity to a matter concerning another that places the
other before the public in a false light is subject to liability to the other for
invasion of privacy, if (a) the false light in which the other was placed
would be highly offensive to a reasonable person, and (b) the actor had
knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light which the other would be placed.
RESTATEMENT (SECOND) OF TORTS § 652E; see Cibenko v. Worth Publishers, Inc., 510 F.
Supp. 761, 766 (D.N.J. 1981). The Court has already decided the second prong, actual
malice, in Plaintiffs’ favor. See supra Part III.B.2; see also Durando v. Nutley Sun, 209
N.J. 235, 249 (2012) (“The second prong of a false-light claim parallels the requirements
of the actual-malice standard . . . .”). Consequently, the only question remaining is whether
a jury could reasonably find that the Musicians and Electricians Statements “would be
highly offensive to a reasonable person.”
17

False light and defamation are “closely allied, and the same considerations apply to
each.” See Cibenko, 510 F. Supp. at 766. A statement does not have to be defamatory,
however, to be actionable under false light. See id. The statement in question need only
be highly offensive to a reasonable person; in other words, “[t]he publicized material in a
false-light claim must constitute a major misrepresentation of [plaintiff’s] character,
history, activities or beliefs.” See Romaine, 109 N.J. at 295. “Thus, it is for the Court to
determine whether the communication in question is capable of bearing a particular
meaning which is highly offensive to a reasonable person.” Cibenko, 510 F. Supp. at 766.
Given that false light and defamation are “closely allied,” the Court’s previous
distinction between defamation and product disparagement warrants consideration here.
See supra Part III.A. As stated before, both the Musicians and Electricians Statements
criticize the services Plaintiffs provided to Defendant, but they do not impute to Plaintiffs
“fraud, deceit, dishonesty, or reprehensible conduct.” Consequently, the statements are
actionable under product disparagement but not under defamation. Id. For the same
reason, the Court finds that these statements do not rise to the level of what a reasonable
person would consider to be “highly offensive.” See Cibenko, 510 F. Supp. at 766; cf.
Dairy Stores, 104 N.J. at 159 (Garibaldi, J., concurring) (“Thus, unless the disparaging
statement explicitly imputes to the corporation fraud, deceit, dishonesty, or reprehensible
conduct in relation to the product, courts will not deem a merely critical statement to be
defamatory.”).
As a practical matter, Plaintiffs conduct the majority of their business over the
internet. See Pls.’ Opp’n, Ex. D-3, Gillon Dep. 11:2–14. As such, they avail themselves
to the public in that forum and cannot reasonably expect protection from criticism of their
business dealings under an invasion of privacy tort. Furthermore, the Restatement notes
that “[t]he right protected by the action for invasion of privacy is a personal right, peculiar
to the individual whose privacy is invaded. . . . A corporation . . . has no personal right of
privacy.” See RESTATEMENT (SECOND) OF TORTS § 652I cmts. a, c. As a result, IGMC
has no cause of action under false light. Id.
Gillon, on the other hand, could maintain a cause of action if the statements against
her constituted “a major misrepresentation of [her] character, history, activities or beliefs.”
See Romaine, 109 N.J. at 295. Mere criticisms of her services, however, do not rise to that
level. Cf. Savely v. MTV Music Television, No. 11-cv-1021, 2011 WL 2923691, at *5
(D.N.J. July 18, 2011) (finding that plaintiff appropriately alleged false light claim because
statement associated him with a provocative and profane artist, which hurt his business);
Ciemniecki, No. 09-cv-6450, 2010 WL 2326209, at *14 (D.N.J. June 7, 2010) (finding that
plaintiff appropriately alleged false light claim because statement accused her of raising a
false fire alarm, which is generally regarded as a rather despicable act); Gibbs v. Massey,
No. 07-cv-3604, 2009 WL 838138, at *12 (D.N.J. 2009) (finding that plaintiff
appropriately alleged false light claim because statement accusing her of theft qualified as
18

highly offensive). False criticisms of a business’s products or services are appropriately
couched under the product disparagement cause of action, not under false light. Cf. Dairy
Stores, 104 N.J. at 134 (“Courts generally are reluctant to impute a lack of integrity to a
corporation merely from a criticism of its product.”).
Accordingly, summary judgment is GRANTED for Defendant against Plaintiffs’
false light claim and Count VII is DISMISSED.
IV.

CONCLUSION

For the reasons stated above, Defendant’s motion for summary judgment is
GRANTED in its entirety and all counts are DISMISSED.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: November 3, 2016

19