Shabazz et al v. ICWUC Center for Worker Health & Safety Education et al
Filing
71
OPINION AND ORDER granting 54 , 55 , 56 , and 57 Defendants' Motions for Summary Judgment, denying as moot 61 Defendants' MOTION to Strike the East Affidavit, and dismissing this action with prejudice. Signed by Judge Douglas R. Cole on 12/30/21. (sct)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ZAKIA RAFIQA SHABAZZ, et. al.,
Plaintiffs,
Case No. 1:18-cv-339
JUDGE DOUGLAS R. COLE
v.
ICWU CENTER FOR WORKER
HEALTH & SAFETY
EDUCATION, et. al.,
Defendants.
OPINION AND ORDER
This cause comes before the Court on Defendants International Chemical
Workers Union (“ICWU”) Council, ICWU Center for Worker Health & Safety
Education (“ICWU Center” or “the Center”), Frank Cyphers, John Morawetz, and
Lula Odom’s (collectively “Defendants”) Motions for Summary Judgment (Docs. 54,
55, 56, 57), filed on February 3, 2020. Plaintiffs United Parents Against Lead
(“UPAL”) and Zakia Rafiqa Shabazz1 filed an Opposition (Doc. 59) on March 16, 2020
and Defendants replied (Docs. 62, 64, 65, 66) on April 30, 2020.
Also before the Court is Defendants’ Motion to Strike (Doc. 61) the Affidavit of
Beverly East (“East Affidavit,” Doc. 59-7), which Shabazz had submitted in support
of her Opposition (Doc. 59) to Defendants’ Motions for Summary Judgment (Docs. 54,
55, 56, 57). The Motion to Strike has also been fully briefed (Docs. 67, 69).
Unless otherwise stated or clear from context, the term “Shabazz” refers to Plaintiffs
collectively.
1
For the reasons stated more fully below, the court GRANTS Defendants’
Motions for Summary Judgment (Docs. 54, 55, 56, 57). As the Court’s holding does
not turn, one way or the other, on the contents of the East Affidavit, Defendants’
Motion to Strike (Doc. 61) is DENIED AS MOOT.2 Accordingly, the Court
DISMISSES this action WITH PREJUDICE.
BACKGROUND
Zakia Shabazz is the Founder and Chief Executive Director of UPAL, a nonprofit
organization that
supports families and communities impacted by
environmental hazards. (Am. Compl., Doc. 46, #7563; Pls. Resp. to Defs. Proposed
Undisputed Facts, Doc. 59-12, #2172).
The ICWU Center was established by the ICWU in 1988 to provide training
for employers and employees regarding worker health and safety matters. (Pls. Resp.
to Defs. Proposed Undisputed Facts, Doc. 59-12, #2169).4 The Center operates on a
non-profit basis, and most of its activities are supported by grants from the National
Institute of Environmental Health Sciences (“NIEHS”), which itself is part of the
National Institute of Health (“NIH”). (Id.).
Because the Court denies Defendants’ Motion to Strike (Doc. 61) as moot, the Court does
not discuss it at greater length in this Opinion. Consequently, the terms “Motions,”
“Opposition,” and “Replies” refer solely to briefs related to Defendants’ Motions for Summary
Judgment, unless otherwise stated.
2
3
Refers to PAGEID #.
Aside from the ICWU Center and the ICWU Council themselves, all the other defendants
in this case (including Cyphers, Morawetz, and Odom) are employees of these organizations.
(Pls. Resp. to Defs. Proposed Undisputed Facts, Doc. 59-12, #2171–72). Because Shabazz does
not bring any claims against these individual defendants that arise independently of their
employment duties, in addressing claims against the Center and ICWU Council, the Court
also addresses the claims against the individual defendants.
4
2
NIEHS principally funds the Center through two grants: (1) the Hazardous
Waste Worker Health and Safety Training Program, and (2) the Hazmat Disaster
Preparedness Training Program. Together, these grants are known collectively as the
“Big Grant.” (Id. at #2170). The Center applies for the Big Grant on five-year cycles.
(Id.).
Although this litigation arises from two separate events involving Shabazz and
Defendants, both events revolve around the Big Grant. First, Shabazz asserts various
claims arising out of the Center’s 2014 Big Grant application. Second, Shabazz brings
claims related to the Center’s 2016 efforts to obtain permission to use funds from the
Big Grant to support training sessions in Flint, Michigan. The Court describes each
of these events below.
A.
The 2014 Big Grant Application
The first event giving rise to Shabazz’s claims involves the Center’s 2014 Big
Grant application. On September 9, 2014, defendant Lula Odom, a staff member at
the Center, sent a mass email to organizations and individuals with whom the Center
works. (Id. at #2175). The email explained that the Center was applying for the Big
Grant and requested that the recipients provide letters of support to accompany the
application. (Id.). Shabazz was one of this email’s recipients. (Id.).
On September 11, 2014, Shabazz responded to Odom’s email and provided four
letters of support. (Id. at #2176). Two of the letters were from UPAL (one from
Shabazz herself and one from her husband, who is also affiliated with the
3
organization), and two were from Shabazz and her husband in their personal
capacities. (Id.).
On or about November 5, 2014, defendant Frank Cyphers, President of the
ICWU Council, submitted the Big Grant application on the Center’s behalf. (Id. at
#2184–85; Opp., Doc. 59, #1564). Included in this application was one of the letters
Shabazz had emailed Odom on September 11.5 However, the finalized letter included
in the Big Grant application differed from Shabazz’s original in a few ways. First, the
finalized version made certain non-substantive adjustments to the letter’s spelling
and terminology.6 And, second, whereas Shabazz’s original letter included an
electronic signature, with her name presented in a script-style font, the finalized
letter included a handwritten signature (sometimes referred to as a “wet ink
signature”). (Compare Original Shabazz Ltr., Doc. 54-6, #1135 with Submitted
Shabazz Ltr., Doc. 46, #771).
Shabazz agrees that the finalized letter’s content reflected her position at the
time it was submitted. (Shabazz April Depo. Excerpts, Doc. 54-8, #1208–09). Nonetheless,
she argues that the Defendants “forged” her handwritten signature on the letter.
(Shabazz Sept. Depo. Excerpts, Doc. 54-7, #1161; Opp., Doc. 59, #1539). For their part,
It is unclear if the other three letters were used in the application. If they were used, they
are not the subject of any claims in this litigation.
5
Specifically, the finalized version of the letter included the following non-substantive
changes: (1) “ICWUC Center” is changed to “ICWU Center;” (2) “1st” is changed to “First;”
and (3) “1st Aid/CPR” is changed to “First Aid/CPR-AED.” (Compare Original Shabazz Ltr.,
Doc. 54-6, #1135 with Submitted Shabazz Ltr., Doc. 46, #771).
6
4
Defendants respond that they do not know who affixed the wet ink signature to the
finalized letter. (Mot., Doc. 54-1, #1000–02).
Although the Center submitted the Big Grant application in 2014, the alleged
forgery did not come to light until Shabazz commenced litigation in 2017 to pursue
her other claims (described in further detail below). (Pls. Resp. to Defs. Proposed
Undisputed Facts, Doc. 59-12, #2199). After Shabazz voluntarily moved to dismiss
her original case, she filed a new complaint (Doc. 1-2) (which she later amended (see
Doc. 46)) against Defendants that raised several claims related to the alleged
forgery.7 Specifically, Shabazz alleges that the forgery constituted: (1) invasion of
privacy under Ohio common law; (2) a violation of Ohio’s Deceptive Trade Practices
Act (ODTPA); (3) false endorsement under the Lanham Act; (4) fraud under Ohio
common law; and (5) civil conspiracy. (Am. Compl., Doc. 46).
B.
The 2016 Flint Training Session
Shabazz also brings claims related to the Center’s 2016 efforts to obtain special
permission from NIEHS to use funds from the Big Grant to conduct training sessions
in Flint, Michigan.
Shabazz filed her original Complaint pro se in Hamilton County Court of Common Pleas on
January 10, 2017. (A1700121 Compl., Doc. 10-15, #361). That Complaint only brought claims
arising from the 2016 events, described in the next section of this opinion. (Id.). After Shabazz
retained counsel, she moved to dismiss that original case without prejudice on February 1,
2018. (A1700121 Mot. to Dismiss, Doc. 10-16, #368). She subsequently filed the first
Complaint (Doc. 1-2) in this case on April 2, 2018, which included claims related to the
allegedly forged signature. Shabazz filed her Amended Complaint (Doc. 46) on December 24,
2019.
7
5
In late 2015, it become public knowledge that the city of Flint’s water supply
had been contaminated by lead. (Pls. Resp. to Def. Proposed Undisputed Facts, Doc.
59-12, #2187). Employees at the Center began doing research into the issue and
planning a potential training program in Flint. (Id. at #2189–90). On January 27,
2016, Shabazz contacted Odom regarding the situation in Flint, which led to a call
that day between Center employees and Shabazz in which the water crisis was
discussed. (Id. at #2191). On January 31, 2016, Shabazz emailed the Center to
provide materials “to aid in the development of [a] Lead Poisoning Curriculum.” (Id.
at #2192). The Center did not ultimately use any of these materials in planning its
training session. (Id. at #2193).
On February 4, 2016, the Center’s Director, defendant John Morawetz, emailed
the Center’s contact at NIEHS regarding the situation in Flint. (Id. at #2193).
Director Morawetz’s email requested permission to use funds from the Big Grant to
support “Train the Trainer” sessions in the Flint area. (Id.). In explaining the Center’s
plan, Morawetz stated:
If the [Train the Trainer] class has a sufficient attendance, we will
extend it to three days to permit all new trainers to have time to prepare
and present modules. We are in communication with CBTU [(Coalition
of Black Trade Unionists)] chapters in Detroit, Lansing and the Detroit
Fire Academy. The Richmond, Virginia CBTU CARAT [(Community
Action and Response Against Toxics)]8 Team is headed by Zakia
Shabazz, the Director, [UPAL] and her letter of support was in our
competitive application.
Although “CBTU primarily provides services for union-represented employees, it has
established Community Action and Response Against Toxics (CARAT) Teams for many of its
local chapters to provide services primarily in minority communities regarding toxic
substances.” (Pls. Resp. to Def. Proposed Undisputed Facts, Doc. 59-12, #2174).
8
6
(Id.).
On February 16, 2016, NIEHS granted the Center’s request to use funds from
the Big Grant to support its training sessions in the Flint area. (Id. at #2195–96). The
training session was held in March 2016. (Id. at #2196). Shabazz was not involved in
this training session, either as an instructor or as an attendee. (Id.).
Around May 2016, NIEHS issued its annual Director’s Report. (Id.). The
Report described the Center’s training sessions in Flint earlier that year, stating, in
pertinent part:
[ICWU] Council has been funded to conduct lead awareness and ‘train
the trainer’ classes in the Flint Michigan area. The three-day class will
permit all new trainers to have time to prepare and present lead
awareness modules. They are working with [CBTU] chapters in Detroit,
Flint, and Lansing, as well as the Detroit Fire Academy. The CBTU
Team is headed by Zakia Shabazz, the Director of United Parents
Against Lead.
(Id. (emphasis added)). Both sides agree the Report’s statement that Zakia Shabazz
“headed” the CBTU Team at the Center’s Flint training session is inaccurate. (Id. at
#2197). However, the parties dispute how this error found its way into the NIEHS
Director’s Report.
Shabazz argues, in brief, that the error in the Director’s Report arose from
Defendants’ deliberate (and successful) effort to mislead NIEHS to believe that
Shabazz would lead the Flint training session to gain NIEHS approval to use Big
Grant funds. As evidence, she points to what ICWU Center Director Morawetz said
in his February 4 email to NIEHS (quoted above). In particular, Shabazz says that
Morawetz’s statement that she was heading the Richmond CBTU CARAT Team is
7
what gave NIEHS the false impression that she was involved in the training program.
(Opp., Doc. 59, #1549–51). Defendants, by contrast, respond that the Report was
prepared by an unknown writer at NIEHS, who simply misinterpreted Morawetz’s
February 4 email. (Center’s Mot., Doc. 54-1, #1005). Thus, in Defendants’ view, the
Report’s reference to Shabazz’s role was little more than an innocent mistake and,
moreover, one which was totally beyond Defendants’ control, as the Center (a private
organization) and NIEHS (a government agency) are separate entities.
Shabazz discovered the error in the Report when she conducted an internet
search on herself in August 2016. (Pls. Resp. to Defs. Proposed Undisputed Facts,
Doc. 59-12, #2198). Several months later, in January 2017, she sued the Defendants.
(Id. at #2198–99). Shabazz’s claims arising from Defendants’ alleged use of her name
to obtain funding for the Flint training session include: (1) violation of the ODPTA;
(2) false endorsement under the Lanham Act; (3) invasion of privacy under Ohio
common law; and (4) civil conspiracy.
LEGAL STANDARD
Defendants have all moved for summary judgment. (Docs. 54, 55, 56, 57). In
evaluating their Motions, the Court bears in mind that “[t]he ‘party seeking summary
judgment always bears the initial responsibility of informing the district court of the
basis for its motion and identifying those portions’ of the record which demonstrate
‘the absence of a genuine issue of material fact.’” See, e.g., Rudolph v. Allstate Ins.
Co., No. 2:18-cv-1743, 2020 WL 4530600, at *3 (S.D. Ohio Aug. 6, 2020) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
8
But the non-moving party cannot defeat a motion for summary judgment
merely by pointing to any factual dispute. As the Sixth Circuit has explained, “[t]he
mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Int’l Outdoor, Inc. v. City of Troy, 974 F.3d
690, 697 (6th Cir. 2020) (bracket omitted) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247–48 (1986)).
In sum, the nonmoving party, at this stage, must present some “sufficient
disagreement” that would necessitate submission to a jury. See Moore v. Phillip
Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251–
52). In making that determination, though, the Court must view the evidence in the
light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150
(6th Cir. 1995) (“In arriving at a resolution, the court must afford all reasonable
inferences, and construe the evidence in the light most favorable to the nonmoving
party.”).
LAW & ANALYSIS
In her Amended Complaint (Doc. 46), Shabazz asserts five claims: (1) invasion
of privacy under Ohio common law; (2) violation of ODTPA; (3) false endorsement
under the Lanham Act; (4) fraud under Ohio common law; and (5) civil conspiracy.
The Court addresses each of the five claims below, although it addresses the ODTPA
and Lanham Act claims jointly, as the same framework applies to each. Papa Ads,
9
LLC v. Gatehouse Media, Inc., No. 5:10-cv-203, 2011 WL 13186119, at *4 n.11 (N.D.
Ohio Mar. 22, 2011).
A.
Shabazz’s Invasion Of Privacy Claim Fails As A Matter Of Law.
In the first count of her Complaint, Shabazz alleges that Defendants violated
her rights under Ohio’s common law right of publicity, which is a subspecies of Ohio’s
invasion of privacy tort. (Am. Compl., Doc. 46, #762). “A defendant is subject to
liability under the Ohio common-law right of publicity tort when he ‘appropriates to
his own use or benefit the names or likeness of another.’” Roe v. Amazon, 714 F. App’x
565, 568 (6th Cir. 2017) (citing Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d
454, ¶ 1 of syllabus (Ohio 1976), rev’d on other grounds, 433 U.S. 562 (1977)). In order
to prevail on this claim, in addition to showing misappropriation, the plaintiff “must
demonstrate that [his or her] name or likeness has value.” Id. (citing Zacchini, 351
N.E.2d at 458 n.4).
Shabazz alleges that Defendants violated her right of publicity in two distinct
ways: first, by allegedly forging her signature in her letter of support for the Big
Grant; and second, by Defendants’ use of her name to obtain funding for the Center’s
Flint training sessions. The Court addresses each of these claims in succession.
Shabazz first alleges that the Defendants violated her right of publicity by
forging her signature on the letter of support in the Big Grant application. As Shabazz
explains, “[t]he forgery of the signature of another is a recognized variant of the tort
known generally as invasion of privacy. More specifically, forgery amounts to the
appropriation of the name or likeness of another.” (Opp., Doc. 59, #1547 (quoting
10
James v. Bob Ross Buick, Inc., 855 N.E.2d 119, 122 (Ohio Ct. App. 2006)). Thus,
Shabazz argues, because there remains a dispute of fact as to whether Defendants
signed her name on the letter, the case must proceed to a jury. (Opp., Doc. 59, #1549).
While Shabazz is correct that the forgery of another’s signature can constitute
invasion of privacy under Ohio law, see James, 855 N.E.2d at 122, she has failed to
create a genuine dispute as to whether her signature was, in fact, forged. Central to
the Court’s analysis here is the issue of consent. As the Supreme Court of Ohio has
explained, “[c]onsent is generally an absolute defense to an invasion of privacy claim.”
Lundsford v. Sterile of Ohio, LLC, 165 N.E.3d 245, 254 (Ohio 2020) (citing
Restatement (Third) of Employment § 7.06 (2015)). Thus, if Defendants can show that
they had Shabazz’s consent to use her signature, her invasion of privacy claim with
regard to the alleged “forgery” fails as a matter of law.
Here, the parties agree that Shabazz emailed a letter to the Center on
September 11, 2014. (Shabazz Sept. Depo. Excerpts, Doc. 54-7, #1160). This letter
was identical to the one that the Center ultimately submitted in the Big Grant
application aside from (1) a few minor, non-substantive changes, and (2) the form of
the signature. (Compare Original Shabazz Ltr., Doc. 54-6, #1135 with Submitted
Shabazz Ltr., Doc. 46, #771). Whereas the original letter included an electronic
signature with Shabazz’s name written in a script-style font, the finalized letter
included the handwritten signature at the center of this litigation. (Id.). Thus,
Shabazz indisputably consented to the use of her electronic signature for the purposes
of the letter of support. The only question that remains is whether the distinction
11
between an electronic signature and a handwritten one is salient for the purposes of
an invasion of privacy claim. In the Court’s view, it is not.
Rather than drawing strong distinctions between electronic signatures and
their traditional handwritten counterparts, Ohio law generally recognizes both forms
of signature as equally effective. In Ohio v. Martin, the Eighth Appellate District
considered whether Ohio’s law requiring that a grand jury foreman or deputy
foreman sign an indictment could be satisfied by way of electronic signature. The
Court observed that
the use of electronic signatures has become common place in the law.
Indeed, the Ohio Uniform Electronic Transaction Act at R.C. 1306.06(A)
provides that “a record or signature may not be denied legal effect or
enforceability because it is in electronic form.” The act further provides
that “[i]f a law requires a signature, an electronic signature satisfies the
law.” R.C. 1306.06(D). Thus, under the act, the requirement … that
either grand jury foreman or deputy foreman sign the indictment is
satisfied by his or her electronic signature.
Ohio v. Martin, No. 106038, 2018 WL 2149730, at *6 (Ohio Ct. App. May 10, 2018);
see also Jones v. U-Haul Co. of Mass & Ohio, 16 F. Supp. 3d 922, 934 (S.D. Ohio 2014)
(stating that “[e]lectronic signatures are binding under Ohio law”); Stephens v.
Frisch’s Big Boy Rests., No. 1:19-cv-954, 2020 WL 4754682, at *3 (S.D. Ohio July 30,
2020). Accordingly, as a general rule, wet signatures and electronic signatures are
both equally valid and effective under Ohio law.9
The Court emphasizes that this general rule is just that: a general rule. But Ohio law leaves
open the possibility that, in some circumstances, a signature in a specific form may be
required. See, e.g., Ohio Admin. Code 4121-3-18(B)(2) (stating that “district hearing officers,
staff hearing officers and the commission will accept a written statement from a party, signed
in handwriting[.]” (emphasis added)). But Shabazz has not identified, and the Court is not
9
12
Alternatively, Shabazz might argue that, even if Ohio law does not distinguish
between electronic and wet signatures, another source of law or set of rules might,
which may make the substitution of the latter for the former in the letter of support
an appropriate basis for an invasion of privacy claim. For example, assume for a
moment that the NIEHS would accept only support letters with wet ink signatures.
If Shabazz provided a letter with an electronic signature, knowing that the Center
could not rely on it for support, and the Center then changed that to a wet ink
signature, so that it could rely on the letter, perhaps Shabazz could somehow craft an
invasion of privacy claim out of that. And, when the Court explored that issue at oral
argument, that is the direction Shabazz’s attorney seemed to go. But when asked to
point to any rule or regulation supporting the notion that the form of the signature
mattered, the attorney could not do so. Rather, he just “thought” that “may” be the
case. The summary judgment stage of litigation, though, is not an appropriate time
to speculate what the case may be, but rather to present the evidence as to what the
case is. In any event, the Court has found nothing that suggests that the form of the
signature on support letters (i.e., whether electronic or wet ink) matters one whit in
terms of the NIEHS grant application program.
Thus, Shabazz has identified nothing under Ohio law or NIEHS rules that
suggest there is a meaningful distinction between wet and electronic signatures.
Accordingly, Shabazz’s invasion of privacy claim cannot proceed, at least with regard
aware of, any rule indicating that this case is a special circumstance which would mandate a
departure from the general rule. Accordingly, the Court applies the general rule here.
13
to the allegedly forged letter of support. As previously explained: consent is fatal to
an invasion of privacy claim, and Shabazz consented to the use of her signature to
support the Big Grant application when she emailed her letter to the Center. The fact
that the finalized letter substituted a wet signature for the electronic signature is
irrelevant. Under Ohio law and NIEHS grant application rules, a signature is,
generally speaking, a signature. Even assuming that the Defendants wrote Shabazz’s
name on the letter themselves (which has not been proven), for the purposes of
Shabazz’s invasion of privacy claim, that change to the form of signature is no
different than adjusting the letter’s font style or formatting.
In light of this finding, the Court grants Defendants’ Motions for Summary
Judgment with regard to Shabazz’s invasion of privacy claim arising from the use of
her signature in the Big Grant letter of support.
Shabazz next argues that Defendants are liable for invasion of privacy due to
their use of her name in connection with their efforts to obtain funding for their
training session in Flint. (Opp., Doc. 59, #1549–54). As evidence, Shabazz points to
ICWU Center Director Morawetz’s February 4, 2016, email to NIEHS, in which he
stated that the Center was “in communication with CBTU chapters in Detroit,
Lansing, and the Detroit Fire Academy. The Richmond, Virginia CBTU CARAT
Team is headed by Zakia Shabazz, the Director, [UPAL] and her letter of support was
in our competitive application.” (Center’s Mot., Doc. 54-1, #1004 (emphasis added)).10
During oral argument, Shabazz’s counsel also suggested that there were other
communications between the Center and NIEHS in which the Center misrepresented to
NIEHS that Shabazz would conduct the Flint training sessions. However, he also stated that
10
14
Under Ohio law, a right of publicity claim cannot proceed where the alleged
use of the plaintiff’s name or likeness was “mere[ly] incidental.” Fox v. Nationwide
Mut. Ins. Co., 117 N.E.3d 121, 145 (Ohio Ct. App. 2018) (citing Vinci v. Am. Can. Co.,
591 N.E.2d 793 (Ohio Ct. App. 1990)). For example, in Vinci, an Olympic weightlifter
“brought a class action on behalf of himself and other Olympic athletes whose names
and likenesses were used on a series of disposable drinking cups promoted by a
partnership between the Minute Maid Corporation and the United States Olympic
Committee.” ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 929 (6th Cir. 2003) (citing
Vinci v. Am. Can Co., 459 N.E.2d 507 (1984 Ohio)). The court dismissed this alleged
invasion of privacy as “merely incidental,” noting that the “reference[s] to the athletes
and their accomplishments was purely informational; there was no implication that
the athletes used, supported, or promoted the product.” Vinci, 591 N.E.2d at 794.
Thus, under Ohio law, the guiding inquiry in evaluating an “incidental” defense to
invasion of privacy is whether a plaintiff’s name is used for informational purposes,
he had no direct evidence of these interactions. Instead, he appears to argue that the Court
can infer such interactions took place based the erroneous NIEHS Director’s Report.
In the Court’s view, the Director’s Report cannot bear the weight Shabazz ascribes to
it. As the non-movant in this case, the Court is required to make all reasonable inferences in
Shabazz’s favor. Mangum v. Repp, 674 F. App’x 531, 536 (6th Cir. 2017). But the inference
Shabazz attempts to make here is not reasonable, and thus the Court cannot consider it at
the summary judgment stage. Stackhouse v. Forward Air, Inc., No. 2:07-cv-1241, 2009 WL
778319, at *8 (S.D. Ohio March 20, 2009).
Shabazz has had ample opportunity to uncover evidence that Defendants used her
name in their external communications regarding the Flint training sessions. And, thus far,
the only direct evidence she has uncovered is the February 4 Morawetz email. At this late
stage, the argument that there were other deceptive contacts between Defendants and
NIEHS that have continued to evade discovery entirely is simply not reasonable.
Accordingly, while the Court considers the Morawetz email for the purposes of
evaluating Shabazz’s claims, it declines her invitation to infer that there were other relevant
communications between the Center and NIEHS that the record has yet to reveal.
15
which is not actionable, or instead to create the impression of the plaintiff’s
endorsement or support of a given position, which is.
Here, there is no genuine dispute that Morawetz’s use of Shabazz’s name was
purely informational. As the Center states, at the time Morawetz sent the email, its
staff “was engaged in various matters to prepare for a possible Flint training, such as
soliciting possible attendees and materials from various ‘resources.’” (Center’s Reply,
Doc. 62, #2250). This explains Morawetz’s references to CBTU chapters in Detroit,
Lansing, and the Detroit Fire Academy, who Morawetz has stated were “local
organizations that [would potentially] participate in [the] lead training.” (Morawetz
June Depo. Excerpts, Doc. 59-3, #1900). Through the Richmond CARAT CBTU Team,
Shabazz had a connection to these organizations. Because NIEHS was presumably
familiar with Shabazz through the Center’s prior Big Grant application, she was a
helpful point of reference for Morawetz to describe who these other organizations in
Michigan were.
Thus, the Court finds that, to the extent that Defendants used Shabazz’s name
in their efforts to obtain funding for the Flint training session, this use was merely
incidental and accordingly not actionable as an invasion of privacy.
B.
Defendants Are Not Liable Under ODTPA Or The Lanham Act.
Shabazz next brings claims under ODTPA and the Lanham Act. Because “the
same legal analysis is employed to resolve Lanham Act claims and [ODTPA] claims,”
the Court only applies a Lanham Act analysis here. Papa Ads, 2011 WL 13186119,
at *4 n.11 (internal citations omitted).
16
Section 43(a) of the Lanham Act, codified at 15 U.S.C. § 1125(a), authorizes a
civil action against, in pertinent part,
[a]ny person who, on or in connection with any goods or services … uses
in commerce any word, term, name, symbol, or device, or any
combination thereof … which [ ] is likely to cause confusion, or to cause
mistake, or to deceive as to the … affiliation, connection, or association
of such person with another person, or as to the origin, sponsorship, or
approval of his or her goods, services, or commercial activities by
another person[.]
15 U.S.C. § 1125(a). Section 43(a) of the Lanham Act has been used to combat a wide
variety of allegedly anticompetitive trade practices, including more traditional forms
of trademark infringement, see, e.g. Quabaug Rubber Co. v. Fabiano Shoe Co., 567
F.2d 154 (1st Cir. 1977); infringement of trade dress, see, e.g., Craft Smith, LLC v. EC
Design, LLC, 969 F.3d 1092, 1106 (10th Cir. 2020); and—as Shabazz alleges is the
case here—false celebrity endorsement. ETW Corp., 332 F.3d at 925.
As the Sixth Circuit has explained, in celebrity endorsement cases, “the ‘mark’
at issue is the plaintiff’s identity,” and thus liability under § 43(a) arises when the
plaintiff’s identity “is connected with a product or service in such a way that
consumers are likely to be misled about the celebrity’s sponsorship or approval of the
product or service.” Id. at 925–26. For example, in White v. Samsung Electronics
America, Inc., the Ninth Circuit found that § 43(a) could support a false endorsement
claim where a commercial for electronics featured a robot bearing a resemblance to
the plaintiff, television celebrity Vanna White. 971 F.2d 1395 (9th Cir. 1992).
Similarly, in Allen v. Nat’l Video, Inc., the Southern District of New York granted
summary judgment to the plaintiff, famed director Woody Allen, where the defendant
17
had hired a Woody Allen impersonator for its ad campaign. 610 F. Supp. 612
(S.D.N.Y. 1985).
Here, Shabazz alleges that the defendants are liable for false endorsement on
two grounds. First, she claims that Defendants are liable for false endorsement for
allegedly forging her signature on the Big Grant letter of support. As she explains,
“the issue at hand [is] forgery—defendants simply did not have Ms. Shabazz’s
authorization, consent, or approval to sign her name to the letter, with the intention
of passing it off as the authentic signature of Zakia Shabazz … in order to obtain
federal grant funding.” (Opp., Doc. 59, #1559–60).
The problem for Shabazz is that, even if the wet signature on the finalized
letter was not hers, the Lanham Act only protects against the use of an individual’s
identity in a way that misleads consumers about that individual’s approval or
sponsorship of a given product or service. Where a plaintiff did, in fact, grant their
sponsorship or approval, a false endorsement claim under § 43(a) cannot succeed. L.S.
Heath & Sons, Inc. v AT&T Info. Sys., 9 F.3d 561, 575 (7th Cir. 1993) (holding that
the plaintiff’s “false endorsement claim fail[ed] … because the endorsement was not
‘false’—[the plaintiff] did give its endorsement and approved the ad”); see also
Klayman v. Judicial Watch, Inc., 629 F. Supp. 2d 112, 149 (D.D.C. 2009). During her
deposition, Shabazz was shown a copy of the finalized letter of support. She was then
asked, “[i]s there anything in [the letter] that’s in front of you, other than your
signature on it, that does not represent UPAL’s position? Other than your signature.”
Shabazz responded that at “[t]he time that it was submitted, those things would have
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certainly been true[.]”11 (Shabazz April Depo Excerpts, Doc. 54-8, #1208–9). Thus,
there is no disputing the fact that Shabazz endorsed the contents of the letter
supporting the Center’s application for the Big Grant.
As noted, though, perhaps if the form of the signature was significant for some
reason—for example, pursuant to Ohio law or NIEHS rules—a different result may
follow. But this Court already considered such an argument in the previous section,
and found nothing under Ohio law or NIEHS rules suggesting that the difference
between electronic and wet signatures is legally salient. Given Shabazz’s concession
that she agrees with the entirety of the contents in the letter attributed to her,
coupled with her failure to show that the form of her signature mattered in any way,
the Court rejects her attempt to rely on the allegedly “forged” signature as the basis
for a false endorsement claim.
Shabazz also argues that Defendants are liable for false endorsement by
misrepresenting to NIEHS that Shabazz would be involved in conducting the Center’s
lead training session in Flint. (Am. Compl., Doc. 46, #765). As evidence, Shabazz
again points to Morawetz’s February 4 email to NIEHS. Although Shabazz concedes
that Morewetz’s email was “technically accurate,” it was “misleading, and certainly
Shabazz’s full statement was: at “[t]he time that it was submitted, those things would have
certainly been true, but they would not have been intended to support any kind of lead
training in Flint, Michigan or anywhere else.” (Shabazz April Depo. Excerpts, Doc. 54-8,
#1208–9). However, it goes without saying that Shabazz’s letter would not have been
intended to support lead training in Flint because, as the Center correctly explains, “at that
time in 2014, no one knew anything about a Flint lead-contamination problem.” (Center’s
Mot,, 54-1, #1001).
11
19
allows a fact finder to reasonably conclude that Defendants engaged in conduct that
violates the Lanham Act.” (Opp., Doc. 59, #1560).
Shabazz is correct that a statement, even if technically true, may give rise to a
§ 43(a) claim if it is nonetheless “likely to cause confusion[] or to cause mistake” in
the minds of consumers. 15 U.S.C. § 1125(a); see also U-Haul Int’l v. Kresch, 904 F.
Supp. 595, 599–600 (E.D. Mich. 1995). Consequently, “in the ordinary false
endorsement claim, the controlling issue is likelihood of confusion,” which courts
generally analyze pursuant to a multi-factor balancing test. ETW Corp., 332 F.3d at
926.
However, in this case the Court finds the multi-factor balancing test is
unnecessary, because, even if Shabazz could prevail in demonstrating likelihood of
confusion, the Defendants’ conduct would nonetheless be protected under the
Lanham Act’s fair use defense.
The fair use defense comes into play in situations where a plaintiff holds a
trademark on a given word or phrase, but the word or phrase also retains an
underlying descriptive meaning. A trademark holder “gets an exclusive right to use
the mark in the way associated with his goods, but ownership of the original,
descriptive sense of the word remains public.” Sazerac Brands, LLC v. Peristyle, LLC,
892 F.3d 853, 857 (6th Cir. 2018). Stated differently, the fair use defense applies when
“the use of the name, term, or device charged to be an infringement is a use, otherwise
than as a mark, … of a term of device which is descriptive and used fairly and in good
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faith only to describe the goods or services of such party, or their geographic origin.”
15 U.S.C § 1115(b)(4).
Thus, a defendant seeking to assert a fair use defense under the Lanham Act
must prove two elements. He or she must (1) “use the label in a descriptive or
geographic sense,” and (2) “do so fairly and in good faith.” Sazerac, 892 F.3d at 857.
The Sixth Circuit has also emphasized, that “as an affirmative defense, fair use
applies even when the plaintiff has met his own burden,” and thus evidence of some
degree of confusion is not dispositive in the fair use analysis. Id.
For example, in ETW Corp., the Sixth Circuit held that the use of Tiger Woods’s
name on an envelope containing an artist’s picture of him was protected under the
fair use defense. The Court explained that Woods’s name “was used only to describe
the content of the print, and all of the materials accompanying the print clearly
identified the artist himself as the source of the print.” Hensley Mfg. v. ProPride Inc.,
579 F.3d 603, 612 (6th Cir. 2009) (citing ETW Corp., 332 F.3d at 920–21). Similarly,
in Hensley, the Sixth Circuit applied the fair use doctrine when the plaintiff, a trailer
hitch manufacturer, sued one of its competitors after the competitor hired the
plaintiff’s founder and namesake to design a new trailer hitch. Id. at 607. In
marketing the new hitch, the competitor advertised the designer’s involvement, to
the chagrin of the plaintiff manufacturer that still bore the designer’s name. Id. In
finding fair use applied, the Sixth Circuit explained that the defendant’s
advertisements do not use the name ‘Hensley’ in the trademark sense;
they use Jim Hensley’s name only to identify him as a designer of trailer
hitches (including the ProPride 3P Hitch), describe his relationship to
ProPride, and tell the story behind his success. … Because … ProPride’s
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uses of Jim Hensley’s name are descriptive, and because Hensley
Manufacturing did not allege facts from which any inference of bad faith
can be drawn, we hold that the fair use defense applies in this case as a
matter of law.
Id. at 612.
Thus, as a practical matter, the analysis required under the fair use defense to
false endorsement closely parallels the analysis required under the “incidental”
defense to invasion of privacy. Perhaps unsurprisingly, then, the Court’s holding on
this issue is also the same. In his February 4 email, ICWU Center Director Morawetz
sought to obtain NIEHS funding for a Flint training session by explaining steps the
Center had already taken to prepare for the session. (Center Reply, Doc. 62, #2250).
This included discussing local organizations Defendants had already contacted, and
Shabazz—a party with whom NIEHS was already familiar—was simply a helpful
point of reference to explain who these organizations were. Moreover, nowhere does
Morawetz suggest Shabazz sponsored or supported the planned training session,
underscoring Defendants’ good faith in their communications with NIEHS.
Accordingly, the Court concludes that the reference to Shabazz and UPAL in the
February 4 email to NIEHS is protected under the fair use doctrine.12
C.
Defendants Are Not Liable for Common Law Fraud.
Next, the Court turns to Shabazz’s fraudulent misrepresentation claim. In
Ohio, the elements of fraud are:
Although the unknown writer of the Director’s Report at NIEHS ultimately was confused
by the reference to Shabazz in the February 4 email, that is not dispositive in the fair use
analysis. Sazerac, 892 F.3d at 857 (stating that fair use “tolerates some degree of confusion”
(internal quotation marks and modifications omitted)).
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(1) a representation or, where there is a duty to disclose, concealment of
fact, (2) which is material to the transaction at hand, (3) made falsely,
with knowledge of its falsity, or with such utter disregard and
recklessness as to whether it is true or false that knowledge may be
inferred, (4) with the intent of misleading another into relying on it,
(5) justifiable reliance upon the representation or concealment, and (6) a
resulting injury proximate[ly] caused by the reliance.
HBA Motors, LLC v. Brigante, No. 1:21-cv-624, 2021 WL 4709733, at *3 (S.D. Ohio
Oct. 7, 2021) (citing Aetna Cas. & Sur. Co. v. Leahey Const. Co., 219 F.3d 519, 539
(6th Cir. 2000)).
Here, the basis of Shabazz’s fraud claim is somewhat unclear. In her Amended
Complaint, she argues that the Defendants are liable because her 2014 letter of
support was used to apply for a different grant than the one she understood it would
be used for. (Am. Compl., Doc. 46, #766, ¶¶ 60–64). However, in her Opposition to
Defendants’ Motions to Dismiss, Shabazz’s theory appears to have changed. (Opp.,
Doc. 59, #1556–57). Shabazz now alleges that liability arises from (1) the alleged
forgery of Shabazz’s name on the 2014 letter of support, (id.), and (2) the alleged use
of Shabazz’s name “for the purpose of obtaining funding for the lead awareness
training in Flint.” (Id. at #1557). Her briefing does not mention the theory that
Shabazz’s letter of support was used to apply for a different grant than originally
intended. (Id. at #1556–57).
That Shabazz’s theory has completely changed is itself fatal to her fraud claim.
Fed. R. Civ. P. 8 “requires that a complaint give a defendant fair notice of a claim and
its supporting facts.” Marzoula v. Cont’l Tire N. Am., No. 5:05-cv-2339, 2006 WL
2345529, at *3 (N.D. Ohio Aug. 11, 2006) (citing EEOC v. J.H. Routh Packing Co.,
23
246 F.3d 850, 854 (6th Cir. 2001)). Consequently, as the Sixth Circuit has explained,
a “[p]laintiff cannot change its theory of the case in an effort to avoid summary
judgment after Defendant moves for summary judgment.” Vaughn v. City of Lebanon,
18 F. App’x 252 (6th Cir. 2001) (emphasis original). Here, Shabazz attempts to do just
that, and accordingly, she has not offered any arguments in opposition to the
Defendants’ Motions for Summary Judgment that the Court is able to consider.
But, even if the Court could consider Shabazz’s fraud claim as asserted in her
Opposition, Shabazz would not prevail. Under Ohio law, “a party is unable to
maintain an action for fraud where the fraudulent representations were not made
directly to him to induce him to act on them in matters affecting his own interests.”
Floyd v. Bank of Am., N.A., No. 1:13-cv-2072, 2014 WL 3732591, at *9 (N.D. Ohio
July 25, 2014) (citing Baddour v. Fox, No. 03CA–77, 2004 WL 1327925, at *4 (Ohio
Ct. App. June 4, 2004)); see also Moses v. Sterling Commerce Am., Inc., No. 02A P–
161, 2002 WL 1938575, at *3 (Ohio Ct. App. Aug. 15, 2002) (“The elements of fraud
must be directed against the alleged victim.”).
Although Shabazz describes two alleged incidents of fraud in her Opposition,
neither of these incidents, even if true, would constitute fraud against her. First, the
allegedly forged signature in the letter of support would have been designed to
deceive NIEHS as to Shabazz’s endorsement. It would not have been designed to
deceive Shabazz or induce her into any sort of action. Second, the February 4 email
to NIEHS regarding the Flint training session, even if it had used Shabazz’s name in
such a way as to give the false impression she would lead the session, similarly fails
24
because this would have constituted fraud on NIEHS. In short, even if the Court could
consider Shabazz’s fraud claim as described in her Opposition, this claim would fail
because the fraud in question would not have been directed against her.
D.
Defendants Are Not Liable for Civil Conspiracy.
Finally, Shabazz alleges that Defendants are liable for civil conspiracy.
However, “a civil conspiracy claim is derivative and cannot be maintained absent an
underlying tort that is actionable without the conspiracy.” Burgess v. Fischer, 735
F.3d 462, 483 (6th Cir. 2013) (quoting Morrow v. Reminger & Reminger Co., L.P.A.,
915 N.E.2d 696, 711–12 (Ohio Ct. App. 2009)).
Because the Court has rejected each of Shabazz’s claims that would have
provided an underlying basis for civil conspiracy, the Court also grants summary
judgment for Defendants on this derivative claim.
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants’ Motions for
Summary Judgment (Docs. 54, 55, 56, 57) and DENIES AS MOOT Defendants’
Motion to Strike (Doc. 61) the East Affidavit.
Accordingly, the Court DISMISSES this action WITH PREJUDICE. The
Court further DIRECTS the Clerk to ENTER JUDGMENT in Defendants’ favor
and terminate this matter on the Court’s docket.
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SO ORDERED.
December 30, 2021
DATE
DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
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