Service Jewelry Repair, Inc. v. Cumulus Media, Inc.

Filing 26

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 11/13/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SERVICE JEWELRY REPAIR, INC.,

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Plaintiff,
v.

CUMULUS BROADCASTING, LLC,
Defendant.

Civil No. 3:14-cv-1901
Judge Aleta A. Trauger

MEMORANDUM
The defendant Cumulus Broadcasting, LLC (“Cumulus”) has filed a Motion for
Summary Judgment (Docket No. 17), to which the plaintiff, Service Jewelry Repair, Inc.
(“Service Jewelry”), has filed a Response in Opposition (Docket No. 22), and Cumulus has filed
a Reply (Docket No. 25). For the following reasons, the motion will be granted.
FACTS AND PROCEDURAL HISTORY1
The plaintiff, Service Jewelry, is a jewelry sales and service company that serves the
Nashville area. It is a corporation organized under Tennessee law with its principal place of
business in Brentwood, Tennessee. Beginning in 2010 and lasting until 2014, Service Jewelry
promoted its products and services through on-air advertising on a local radio station, WWTNFM. Service Jewelry purchased this advertising from Cumulus, a Nevada limited liability
company that owns and manages several Nashville-area radio stations, including WWTN-FM,
1

Unless otherwise noted, the facts recounted in this section are drawn primarily from
Cumulus’s Statement of Undisputed Material Facts (Docket No. 19) and Service Jewelry’s
response thereto (Docket No. 23). This section also contains facts from Cumulus’s Motion for
Summary Judgment and Memorandum of Law in support thereof (Docket Nos. 17 and 18),
Service Jewelry’s Response Memorandum (Docket No. 22), and Cumulus’s Reply (Docket No.
25), that are not refuted or contradicted by the opposing party or the record.
1

and that sells advertising time to many Nashville-area businesses, including thirteen different
jewelry sales and services companies. This action arises from a dispute over an on-air
advertising campaign that Service Jewelry purchased from Cumulus and that ran from May 7,
2014 to July 17, 2014.
This advertising campaign was prompted by an investigative news report that aired on
May 5, 2014 on WSMV-TV, the Nashville NBC-affiliated television station. The report
questioned the manner in which a major competitor of Service Jewelry, Genesis Diamonds
(“Genesis”), graded the quality of its diamond products. On May 6, 2014, the day after the
investigative report aired, Service Jewelry’s Chief Executive Officer, Mark Tornello, and Chief
Financial Officer (“CFO”), Joe Townsend, met with Cumulus General Sales Manager Dave
Elliott, Account Executive Mark Johnson, and WWTN radio personality Michael DelGiorno.
Service Jewelry wanted to run a series of on-air advertisements highlighting the report and
directing consumers to Service Jewelry for assistance if they had concerns regarding the quality
of their diamonds. During the meeting, the five men discussed the content of the new advertising
spots, which would include pre-recorded advertisements and live radio endorsements by
Mr. DelGiorno.
With regard to the live endorsements, Service Jewelry provided Mr. DelGiorno with a list
of talking points that were designed to capitalize upon the negative publicity Genesis had
received as a result of the investigative report. The list included, among others, the following
talking points:
1. If you missed the channel 4 investigation on purchasing diamonds, be sure
to visit WSMV.com and view the report that they ran on May 5th and 6th.
2. Service Jewelry and repair (sic) does not sell EGL International diamonds.
As you will see on the report, these diamonds are hugely overgraded.
3. Service Jewelry and repair (sic) has an independent GIA graduate
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gemologist on staff. We will offer his services to provide a free
consultation, if anyone feels that they may have been misle[d] on their
diamond purchase. You must call Mark Tornello to schedule this
consultation.
4. Service Jewelry and repair (sic) will give you an HONEST education
when you purchase your diamond from us.
5. We will not be undersold on GIA and EGL USA certified diamonds.
6. When you walk out of Service Jewelry and repair (sic), you can rest assure
(sic) that the diamond that you purchased is properly graded, based on
GIA and EGL USA standards, which are different standards. You will
pay a premium for a GIA graded diamond.
...
9. We do not have an unlimited advertising budget. In order for us to
advertise as much as our competitor, think about how much we would
have to mark up our diamonds in order to pay for advertising. We prefer
to save the customer as much as possible.
(Docket No. 23 ¶ 14.) The talking points do not mention Genesis by name, but they do include
references to the investigative report and to Service Jewelry’s “competitor.” To better
understand the context of these talking points, Mr. DelGiorno played a video of the investigative
report on his cell phone during the meeting. At no point did Mr. DelGiorno conduct an
independent investigation into the truth or falsity of the allegations made about Genesis in the
video, and at no point during the meeting did Service Jewelry ask Mr. DelGiorno or Cumulus to
refrain from mentioning Genesis by name in the live endorsements.
Based upon this meeting and other communications between Cumulus and Service
Jewelry, Cumulus prepared a standard Sales Order for the new advertising slots and an On Air
Campaign form, both of which were executed by Service Jewelry. The Sales Order was subject
to Cumulus’s “Standard Terms and Conditions,” which include provisions regarding payment
and billing, termination of the agreement, indemnification, and disputes regarding the Sales
Order. Neither the Sales Order, the Standard Terms and Conditions, nor the On Air Campaign
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form contains any term or provision imposing contractual obligations on the content Cumulus
airs outside of the paid advertisements for Service Jewelry or requiring Cumulus to use only
language provided by Service Jewelry in the pre-recorded advertisements and live endorsements.
Between May 7, 2014 and July 17, 2014, Cumulus ran 70 on-air spots for Service
Jewelry, including a total of 16 live endorsements by Mr. DelGiorno. The first few live
endorsements discussed the investigative report, but they did not mention Genesis by name. On
May 12, 2014, after several live endorsements had aired, Service Jewelry’s CFO, Mr. Townsend,
emailed Mr. DelGiorno to thank him for his effort. Mr. Townsend then wrote:
Genesis, once again, is advertising that “if you find a certified diamond that is
similar to ours for a cheaper price, we will give you ours for free.” We want to
take this guy completely down for this. I would like for you to add to your talking
points, something to the effect, that we would like for anyone to take him up on
this offer.
(Docket No. 17-2 (Decl. of M. DelGiorno), Ex. 3.) Soon after receiving this email,
Mr. DelGiorno mentioned Genesis by name in four live endorsements for Service Jewelry, which
aired on May 21, 22, 23, and 27, 2014.
Genesis was one of the other jewelry sales and service companies that purchased
advertising time from Cumulus. In mid-June 2014, a Genesis representative contacted Cumulus
regarding the live endorsements for Service Jewelry in which Mr. DelGiorno mentioned Genesis
by name. Genesis requested that Cumulus air apologies for these endorsements, and Cumulus
agreed. Two apologies were prepared, one by Cumulus and the other by Mr. DelGiorno, and
they were posted on WWTN-FM’s website (the “Apologies”). The text of the Apologies is as
follows:
Station Apology:
We at WTN want to apologize for some very negative and unfair comments about
Genesis [D]iamonds made during a series of advertisements by our host, Michael
DelGiorno. Michael has apologized to the staff at Genesis for reading a
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commercial by a competitor which included some very strong and disparaging
comments. We are proud to be associated with Genesis Diamonds and hold them
in the highest regard. Genesis has a strong and positive reputation – both in
Nashville and in the jewelry industry nationwide. They have over 40-thousand
satisfied customers, have been the official jeweler of the Tennessee Titans since
2006 and have been voted five straight years as The Best Place in Nashville to
Buy an Engagement Ring. Indeed, Genesis is one of the most successful
independent jewelry stores in America today. You don’t get to that level without
doing business the right way, with integrity, superior products and unmatched
customer service. We wish them years of continued success.
Mr. DelGiorno’s Apology:
Hi, it’s Michael Del[G]iorno . . . here to offer a sincere apology to the owner,
staff, [and] the customers of Genesis Diamonds, as well as to my fellow hosts and
management. Back in May, I did some commercials for another jeweler in town
in which I mentioned Genesis Diamonds and made some pretty negative
statements and serious allegations about their company. To be honest, I did not
do my own investigation about Genesis. I was given some commercial copy by
the other jeweler and I relied entirely on the information provided in doing the
commercials. In some of the commercials for the other jeweler, my statements
may have been pretty derogatory and unfair to Genesis Diamonds – and I am
sorry about that. I should never have made such serious comments about another
business in town, especially without doing my own homework. So, to Mr. Boaz
Ramon, the employees of Genesis Diamonds, their customers and my fellow hosts
and management I apologize – for making statements about Genesis Diamonds
that I did not know were untrue or unfair. I am truly sorry.
(Docket No. 17-3 (Decl. D. Elliott), Ex. 5.) Additionally, a substantially similar version of
Mr. DelGiorno’s apology was read by Mr. DelGiorno and aired on the station fourteen times
from June 20, 2014 to June 25, 2014, roughly a month after the live endorsements naming
Genesis were aired.2 Meanwhile, WWTN-FM continued to air other advertisements for Service
Jewelry that did not refer to Genesis until July 17, 2014, when Service Jewelry cancelled all of
its advertising business with Cumulus. At the time, Service Jewelry had been invoiced
$12,899.98 for the advertising that ran until its cancellation of service, which Service Jewelry
2

In all relevant respects, the language is the same between the version of the apology
posted on the station’s website and the version read by Mr. DelGiorno and aired on the station.
(Compare Docket No. 17-2 (Decl. M. DelGiorno), Ex. 4 (transcription), with Docket No. 17-3
(Decl. D. Elliott), Ex. 5 (website).)
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has never paid.
I.

Procedural History
On August 25, 2014, Service Jewelry filed suit against Cumulus in the Circuit Court of

Davidson County, Tennessee, alleging that, in airing the Apologies, Cumulus spread “defaming,
disparaging, and [] false and damaging statements about Service Jewelry at the request of a
competitor . . . .” (Docket No. 1, Ex. A ¶ 4.) Service Jewelry brought the following claims
against Cumulus: (1) breach of contract; (2) defamation; (3) violations of the Tennessee
Consumer Protection Act (“TCPA”), Tenn. Code. Ann. § 47-18-101 et seq.; and (4) violations of
the Lanham Act, 15 U.S.C. § 1051 et seq. (Id. at Ex. A ¶¶ 28–51.) Service Jewelry requested
actual and punitive damages, treble damages under the TCPA, attorneys’ fees, the costs of the
action, and pre- and post-judgment interest. (Id. at Ex. A, at pp. 13–14.)
On September 24, 2014, Cumulus removed the suit to this court on the grounds that both
federal question jurisdiction and diversity of citizenship exist. (Id. ¶¶ 3–4.) A few months later,
Service Jewelry filed an Amended Complaint (the “Complaint”), which contains the same
factual allegations, brings the same claims, and requests the same relief as the original
complaint.3 (Docket No. 9.) Cumulus answered the Complaint on December 5, 2014. (Docket
No. 15.)
The parties have undertaken minimal discovery in this action. Before the expiration of
the discovery deadline on June 3, 2015, the parties exchanged initial disclosures under Federal
3

The only difference between the original Complaint and the Amended Complaint is the
named defendant. (Compare Docket No. 1, Ex. A, with Docket No. 9.) Service Jewelry initially
named Cumulus Media, Inc. (“CMI”) as the defendant in this action. (Docket No. 1, Ex. A.)
CMI denied in its Answer, however, that it “own[ed] or manage[d] the day-to-day operations” of
WWTN-FM, averring that the station was actually owned and operated by CMI’s subsidiary,
Cumulus Broadcasting LLC. (Docket No. 7 ¶ 6.) After CMI filed its Answer, Service Jewelry
amended the complaint to name Cumulus Broadcasting LLC as defendant. (Docket No. 9.)
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Rule of Civil Procedure 26 and written requests for the production of documents. Neither
Service Jewelry nor Cumulus took any depositions before the close of discovery, and the parties
did not seek an extension of the discovery deadline or trial date. In its initial disclosures, Service
Jewelry identifies as witnesses “likely to have discoverable information that may support
[Service Jewelry’s] claims” only the five men present at the May 6, 2014 meeting (Mark
Tornello, Joe Townsend, Dave Elliott, Mark Johnson, and Michael DelGiorno), an employee of
Cumulus (Mike Carpenter), and the owner of Genesis (Boaz Ramon). (Docket No. 17-1 (Initial
Disclosures) ¶ 1.) Service Jewelry’s initial disclosures do not identify any experts or consumers
as witnesses. Service Jewelry’s initial disclosures also identify the following items in Service
Jewelry’s possession or control that it “may use to support [its] claims”: (1) a series of emails
between Mr. DelGiorno and Service Jewelry in late June 2014, (2) digital audio recordings of the
Apologies, and (3) a video of the investigative report. (Id. ¶ 2.) Service Jewelry’s initial
disclosures do not, however, identify any financial records, calculations of damages, market
reports, or consumer surveys that Service Jewelry could use to support its claims against
Cumulus. The initial disclosures further state that, as a result of the Apologies, Service Jewelry
suffered damages in the amount of (1) $250,000 for loss of reputation and business goodwill,
(2) $20,000 in attorneys’ fees, and (3) an “unknown” amount in lost revenue. (Id. ¶ 3.)
On June 10, 2015, one week after the discovery deadline expired, Cumulus filed a
Motion for Summary Judgment (Docket No. 17), along with a supporting Memorandum of Law
(Docket No. 18), attaching a copy of Service Jewelry’s initial disclosures, the Declaration of Mr.
DelGiorno and accompanying exhibits, and the Declaration of Mr. Elliott and accompanying
exhibits (Docket Nos. 17-1, 17-2, and 17-3). Cumulus’s motion argues, in part, that Service
Jewelry has no evidence, and could place no evidence in the record, of any damages resulting

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from Cumulus’s alleged misconduct. (Docket No. 18, at pp. 11–12, 15–16.) Service Jewelry
filed its Response on June 24, 2015 and attached the Declaration of Service Jewelry CFO, Joe
Townsend (“Townsend Declaration”). (Docket No. 22.) Cumulus filed its Reply on June 30,
2015. (Docket No. 25.)
The Townsend Declaration states that: (1) as a result of the Apologies, “Service Jewelry
was portrayed as a dishonest jeweler that resorts to false advertising and unfair attacks on its
competitors;” (2) “[r]eputation for honesty is of primary importance in the jewelry industry;” and
(3) that the Apologies “harmed Service Jewelry’s reputation and standing in the community and
in the industry, . . . [leading] to actual financial damages, including significant costs and
expenses in attempting to set the record straight.” (Docket No. 22-1 (Decl. J. Townsend) ¶¶ 3–
5.) The Townsend Declaration is the only document in the record speaking to Service Jewelry’s
damages. It provides no calculation of Service Jewelry’s financial damages, costs, or expenses,
nor does the record contain any documentary or additional testimonial evidence supporting
Service Jewelry’s claim of damages. The record contains no consumer surveys or market
research demonstrating consumers’ reaction to the Apologies, nor does Service Jewelry identify
any expert witness who could testify regarding the market impact of the Apologies or the
damages Service Jewelry has sustained.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 requires the court to grant a motion 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). If a moving defendant
shows that there is no genuine issue of material fact as to at least one essential element of the
plaintiff’s claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings,

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“set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City
of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). “In evaluating the evidence, the court must draw all inferences in the light most
favorable to the non-moving party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
At this stage, “‘the judge’s function is not . . . to weigh the evidence and determine the
truth of the matter, but to determine whether there is a genuine issue for trial.’” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be insufficient,” and the
party’s proof must be more than “merely colorable.” Anderson, 477 U.S. at 252. An issue of
fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan,
578 F.3d at 374 (citing Anderson, 477 U.S. at 252).
ANALYSIS
Service Jewelry brings claims against Cumulus for defamation and breach of contract
under Tennessee common law, for violation of the TCPA, and for violation of the Lanham Act.
Service Jewelry’s claim against Cumulus for violation of the Lanham Act is based on
allegations that Cumulus made factual misrepresentations about Service Jewelry in the
Apologies, namely that Service Jewelry “engages in false advertising about its business and
competitors . . . .” (Docket No. 22, at p. 8.) Service Jewelry did not specify in the Complaint or
clarify in its Response which section of the Lanham Act it claims that Cumulus has violated. As
Cumulus notes in its briefing, however, the section of the Complaint discussing the alleged
Lanham Act violation tracks the elements of a § 1125(a)(1)(B) claim (Docket No. 18, at p. 9
n.1), and the court is not aware of any other section of the Lanham Act that could provide relief

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to Service Jewelry based on the facts alleged in the Complaint. The court will, therefore,
construe Service Jewelry’s Lanham Act claim as a claim for violation of § 1125(a)(1)(B).
Service Jewelry also did not specify in the Complaint or clarify in its Response which
section of the TCPA Cumulus allegedly violated. As Cumulus points out in its briefing, the
section of the Complaint discussing the alleged TCPA violation tracks the elements of a claim
under § 47-18-104(b)(8) (Docket No. 18, at p. 12), and the court is not aware of any other section
of the TCPA that could provide relief to Service Jewelry. Although the TCPA contains a “catchall” provision prohibiting “any other act or practice which is deceptive to the consumer or to any
other person,” that specific provision is enforceable only by the Tennessee Attorney General’s
office. Tenn. Code Ann. § 47-18-104(b)(27). The court will, therefore, construe Service
Jewelry’s TCPA claim as a claim for violation of § 47-18-104(b)(8).
I.

Claim for Violation of Section 1125(a)(1)(B) of the Lanham Act
The Lanham Act, 15 U.S.C. § 1051 et seq., is a federal statute that primarily addresses

trademark rights, but it also prohibits unfair competition through the use of misrepresentations of
fact about one’s own or another’s goods, services, or business activities. See 15 U.S.C.
§ 1125(a).4 Service Jewelry has sued Cumulus for violation of § 1125(a)(1)(B) of the Lanham
Act, arguing that Cumulus disseminated statements that misrepresented that Service Jewelry
“engages in false advertising about its business and competitors . . . .” (Docket No. 22, at p. 8.)
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Section 1125(a)(1) actually creates two causes of action arising from “two distinct bases
of liability”: “false association, § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B).”
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1384 (2014).” Section
1125(a)(1)(A) is not, however, relevant to Service Jewelry’s Lanham Act claim. Service Jewelry
has not alleged facts giving rise to a false association claim (also known as a “false designation”
claim) under § 1125(a)(1)(A), which is typically brought in cases in which one party makes a
false designation that is likely to cause confusion or to deceive a consumer as to the origin of that
party’s goods or services.
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Section 1125(a)(1)(B) of the Lanham Act provides:
(1) Any person who, on or in connection with any goods or services, or any
container for goods, uses in commerce any word, term, name, symbol, or device,
or any combination thereof, or any false designation of origin, false or misleading
description of fact, or false or misleading representation of fact, which–
...
(B) in commercial advertising or promotion, misrepresents the nature,
characteristics, qualities, or geographic origin of his or her or another person’s
goods, services, or commercial activities, shall be liable in a civil action by any
person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1)(B). When a plaintiff seeks an award of monetary damages for false or
misleading advertising under the Lanham Act, as Service Jewelry does here, he must show
“either that the defendant’s advertisement is literally false or that it is true yet misleading or
confusing.” Am. Council of Certified Podiatric Physicians & Surgeons v. Am. Bd. of Podiatric
Surgery, Inc., 185 F.3d 606, 614 (6th Cir. 1999). Where statements are literally false, “a
violation may be established without evidence that the statements actually misled consumers.”
Id. If the challenged advertising is “literally true, yet deceptive, or too ambiguous to support a
finding of literal falsity,” however, “a violation can only be established by proof of actual
deception (i.e., evidence that individual consumers perceived the advertisement in a way that
misled them about the plaintiff’s product).” Id. It is the province of the court to determine
whether the statements are too ambiguous to be literally false. Id. at 615 n.2 (“[T]he initial
determination concerning whether a statement is ambiguous is a matter of law, while the
determination as to whether facts exist so as to justify the statement is a question of fact.”).
A.

The Statements in the Apologies Were Not Literally False.

Reading the Complaint and Response in the light most favorable to the non-movant,
Service Jewelry appears to contend that the Apologies (1) falsely attribute Mr. DelGiorno’s
statements about Genesis to Service Jewelry, and (2) falsely label those statements about Genesis

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as “untrue,” “unfair,” “derogatory,” and “disparaging,” and thus – combined – misrepresent that
Service Jewelry lied about Genesis. (See Docket No. 9 ¶¶ 21–24; Docket No. 22, at pp. 5, 8.)
Regarding Service Jewelry’s contention that the Apologies falsely attribute
Mr. DelGiorno’s statements about Genesis to Service Jewelry, the court concludes that any such
attribution in the Apologies is too ambiguous to be literally false. In particular, the Apologies
referred to Mr. DelGiorno’s “commercials for another jeweler in town” from May of 2014 who
gave him “some commercial copy” containing the information on which he relied in commenting
about Genesis, and also referred to “a commercial by a competitor” as the subject of the
Apologies. (Docket No. 17-3 (Decl. D. Elliott), Ex. 5.) None of these statements are literally
false. The Apologies do not actually attribute the content in the commercials that were the
subject of the Apologies to the other jeweler referenced, nor do they name Service Jewelry as
that “other jeweler.” Interpreting the Apologies to mean that Service Jewelry, specifically, is the
source of Mr. DelGiorno’s statements about Genesis requires the listener to remember the
identity of the advertising jeweler in advertisements aired a month previous and to infer that all
negative statements were provided to Mr. DelGiorno by that jeweler and were not part of some
unscripted content. Moreover, Mr. DelGiorno’s statement that he “relied entirely” on the
information in the commercial copy could be understood to have multiple meanings: it could
mean that he read his statements directly from a script, or it could mean that he made the
statements himself based on information contained in the copy. Additionally, “[t]he greater the
degree to which a message relies upon the viewer or consumer to integrate its components and
draw the apparent conclusion, . . . the less likely it is that a finding of literal falsity will be
supported.” Fed. Express Corp. v. United Parcel Serv., Inc., 765 F. Supp. 2d 1011, 1017 (W.D.
Tenn. 2010) (quoting United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1181 (8th Cir. 1998));

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accord Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1309 (11th Cir. 2010) (“As the meaning of
a statement becomes less clear, however, and it becomes susceptible to multiple meanings, the
statement is more likely to be merely misleading.”). Based on the ambiguity in the language and
the degree to which the listener must integrate statements in the Apologies with prior knowledge
of Service Jewelry’s advertising, the court cannot conclude that the portions of the Apologies
that allegedly attributed Mr. DelGiorno’s statements about Genesis to Service Jewelry were
literally false.
Regarding Service Jewelry’s contention that the Apologies falsely label Mr. DelGiorno’s
statements about Genesis as “unfair,” “derogatory,” and “disparaging,” the court concludes that
these portions of the Apologies are not actionable under the Lanham Act because they are
unverifiable statements of opinion. Am. Council of Certified Podiatric Physicians & Surgeons,
185 F.3d at 614 (“[A] Lanham Act claim must be based upon a statement of fact, not of
opinion.”); see also Boule v. Hutton, 328 F.3d 84, 92 (2d Cir. 2003) (“A statement of opinion is
not actionable under the Lanham Act if it ‘could not reasonably be seen as stating or implying
provable facts . . . .’” (quoting Groden v. Random House, Inc., 61 F.3d 1045, 1052 (2d Cir.
1995))); Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 496 (5th Cir. 2000) (noting that
statements that are actionable under the Lanham Act must be a “specific and measurable claim,
capable of being proved false or of being reasonably interpreted as a statement of objective
fact”). What is “unfair,” “derogatory,” or “disparaging” to one person may not be so to another,
and these words do not themselves imply that they state an objective fact or that they are based
on provable facts. These statements are, therefore, not actionable as misrepresentations of fact
under the Lanham Act.
Regarding Service Jewelry’s contention that the Apologies falsely label Mr. DelGiorno’s

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statements about Genesis as “untrue,” the reference in the Apologies to the truth of Mr.
DelGiorno’s statements about Genesis is too ambiguous to support a finding of literal falsity.
See Fed. Express Corp., 765 F. Supp. 2d at 1018 (“[O]nly an unambiguous message can be
literally false.” (quoting Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck
Consumer Pharm. Co., 290 F.3d 578, 586–87 (3d Cir. 2002))). Mr. DelGiorno apologized for
“making statements about Genesis Diamonds that [he] did not know were untrue or unfair.”
(Docket No. 17-2 (Decl. of M. DelGiorno), Ex. 4 (emphasis added).) It is true that a listener
could understand this language to mean that the statements about Genesis attributed to Service
Jewelry were, in fact, untrue. A listener could also understand this language to mean, however,
that Mr. DelGiorno simply did not know whether his statements about Genesis were untrue,
whether they were only unfair, or whether they were both untrue and unfair. Because the
language of the Apologies regarding the truth of Mr. DelGiorno’s statements about Genesis is
open to multiple interpretations, the court concludes that it is ambiguous and, therefore, not
literally false.
Because all of the statements contained in the Apologies are either (1) statements of
opinion that are not actionable under the Lanham Act, or (2) statements that are ambiguous and,
therefore, not literally false, Service Jewelry cannot succeed in its Lanham Act claim by pointing
to the language of the Apologies alone. The court will, therefore, turn to the question of whether
the ambiguous statements in the Apologies actually deceived consumers.5
5

Cumulus cites language from Sixth Circuit case law on the standard for Lanham Act
claims that requires a plaintiff to prove that the defendant made “false or misleading statements
of fact concerning his own product or another’s” and argues that the Apologies do not “fit within
the clear scope of either § 1125(a)(1)(A) or (B),” because they do not mention any “product.”
(Docket No. 18, at p. 10 (quoting Am. Council of Certified Podiatric Physicians & Surgeons, 185
F.3d at 613).) While the court acknowledges that American Council of Certified Podiatric
Physicians & Surgeons could be read to require that a false or misleading statement of fact must
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B.

Service Jewelry Has Not Established Any Actual Deception of Consumers.

Service Jewelry argues that Cumulus portrayed it “as a deceitful jeweler that resorts to
untrue and unfair advertising against its competition” (Docket No. 22, at p. 5), but Service
Jewelry has failed to demonstrate that any consumer was actually deceived by the Apologies into
thinking that Service Jewelry was dishonest.6 A plaintiff bringing a claim under § 1125(a)(1)(B)
“cannot obtain relief by arguing how consumers could react; it must show how consumers
actually do react.” Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723, 735 (6th Cir. 2012)
(quoting Sandoz Pharm. Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 229 (3d Cir. 1990)). To
demonstrate that consumers were actually deceived, courts typically consider evidence of

concern a physical product, the Sixth Circuit has never explicitly held as such; nor would such a
reading comport with the plain language of § 1125(a)(1)(B), which makes actionable a
defendant’s statements pertaining to “his or her or another person’s goods, services, or
commercial activities . . . .” 15 U.S.C. § 1125(a)(1)(B) (emphasis added); see also Proctor &
Gamble Co. v. Haugen, 222 F.3d 1262, 1267, 1271 (10th Cir. 2000) (holding that a rumor that
the plaintiff was “a corporate agent of Satan” was actionable under § 1125(a)(1)(B), even though
it did not concern the plaintiff’s goods or services, because “the subject message clearly related
to [the plaintiff’s] ‘commercial activities’”). The court need not decide whether statements that
do not relate to goods are actionable under the Lanham Act, however, because even if they are,
Service Jewelry has failed to demonstrate a genuine issue of fact as to actual deception.
6

Service Jewelry seeks only monetary relief in this action. As discussed above, proving
actual deception of consumers is an essential element of a claim for monetary damages under
§ 1125(a)(1)(B), where none of the alleged misrepresentations are literally false. Cumulus
argues that Service Jewelry also fails to meet several other elements that the Sixth Circuit applies
to all Lanham Act violations, specifically that Service Jewelry has not: (1) identified any
witnesses who can testify that the Apologies “actually or tend[ed] to deceive a substantial portion
of the intended audience;” (2) presented evidence demonstrating that the Apologies were likely
to influence a “deceived consumer’s purchasing decisions” and were, therefore, material
statements; or (3) established a causal link between Cumulus’s actions and the damages that
Service Jewelry claims to have sustained. (Docket No. 18, at pp. 11–12; Docket No. 25, at p. 3.)
The court need not reach the merits of these arguments, however, because the failure to prove
actual deception is sufficient grounds to dismiss the only Lanham Act claim that Service Jewelry
has actually brought – one seeking monetary relief under § 1125(a)(1)(B).
15

consumers’ actual reaction, including consumer surveys or other market research. See Am.
Council of Certified Podiatric Physicians & Surgeons, 185 F.3d at 616–17. Service Jewelry has
submitted no consumer surveys, market research, or expert testimony demonstrating that
consumers were actually deceived by the Apologies. It has not even identified as witnesses that
it may produce at trial any consumers who could testify that they were deceived, any experts
who could testify as to reputational damages, or any financial documents that could serve as
evidence of lost revenue after the Apologies were aired. In short, the record is devoid of any
evidence regarding consumers’ actual reaction to the Apologies that could show actual
deception. Accordingly, the court will grant summary judgment to Cumulus on the Lanham Act
claim.7
II.

Defamation Claim
To assert a prima facie case of defamation in Tennessee, a plaintiff must establish that a

defendant published a statement either “with knowledge that the statement is false and
defaming,” or “with reckless disregard for the truth of the statement or with negligence in failing
to ascertain the truth of the statement.” Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571
(Tenn. 1999). In addition to these elements, the plaintiff is also required to “prove actual
damages,” Handley v. May, 588 S.W.2d 772, 776 (Tenn. Ct. App. 1979), meaning that “the
plaintiff must show that her standing in the community and her public reputation for character
7

In its briefing, Cumulus states that Service Jewelry’s Lanham Act claim is “the source
of this Court’s jurisdiction.” (Docket No. 18, at p. 9.) When Cumulus removed this action from
the Circuit Court of Davidson County, Tennessee, however, it did so on the grounds of both
federal question jurisdiction and diversity jurisdiction. (Docket No. 1 ¶¶ 3, 4.) Even though the
court is granting summary judgment as to the only claim that serves as a basis for federal
question jurisdiction – the Lanham Act claim – the court will still consider Service Jewelry’s
state law claims, because the court has jurisdiction over them due to the diversity of citizenship
between Service Jewelry and Cumulus.
16

has been injured by the alleged defamatory statement and that as a result she has suffered real or
actual damages due to that loss of standing or reputation,” McLeay v. Huddleston, No. M200502118-COA-R3-CV, 2006 WL 2855164, at *9 (Tenn. Ct. App. Oct. 6, 2006); accord Murray v.
Lineberry, 69 S.W.3d 560, 564 (Tenn. Ct. App. 2001) (“When looking at damages for a
defamation suit this court has stated that, ‘[t]he issue is whether the record contains any material
evidence of impairment of reputation and standing in the community, personal humiliation, or
mental anguish and suffering.’” (quoting Myers v. Pickering Firm, Inc., 959 S.W.2d 152, 164
(Tenn. Ct. App. 1997))).
There is a dispute of fact as to whether the Apologies contain any statement that was
defamatory to Service Jewelry. The court need not reach that question, however, because
Service Jewelry has failed to present any material evidence that its reputation was injured or that,
as a result, it suffered real or actual damages.8 As evidence of the injury it claims to have
8

Service Jewelry contends that Cumulus has failed to “demonstrate [that] a lack of
damages [is] undisputed,” and that Cumulus’s Motion for Summary Judgment as to the
defamation claim should, therefore, be rejected. (Docket No. 22, at p. 7.) As Cumulus points
out in its briefing, in making this argument, Service Jewelry appears to mischaracterize the
burden that the defendant as movant faces at the summary judgment stage as a burden to
disprove the plaintiff’s claims. (See Docket No. 25, at p.1.) To the contrary, the defendant’s
burden when moving for summary judgment is simply to “inform[] the district court of the basis
for its motion and identify[] portions of the record that demonstrate the absence of a genuine
dispute over material facts.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). The
plaintiffs, then, have the burden of presenting affirmative evidence that creates such a dispute of
material fact. Id. Cumulus has informed the court of two bases for its summary judgment
motion on the defamation claim: (1) that the statements were neither untrue nor defamatory and
(2) that Service Jewelry has not shown that it suffered actual damages. (Docket No. 18, at pp.
15–16.) Cumulus also points to the initial disclosures, which do not identify as witnesses any
consumers who could testify that they were deceived, any experts who could testify as to
reputational damages, or any financial documents that could serve as evidence of lost revenue.
(See id. at pp. 11–12, 15–16; Docket No. 25, at pp. 4–5.) It is, therefore, now Service Jewelry’s
burden to produce affirmative evidence that demonstrates that a genuine issue of material fact
exists as to the damages it claims to have suffered.
17

suffered, Service Jewelry submits only the declaration of its CFO, Mr. Townsend. (Docket No.
22, at p. 7; Docket No. 22-1 (Decl. J. Townsend).) The Townsend Declaration contains just the
sort of “[c]onclusory statements unadorned with supporting facts [that] are insufficient to
establish a factual dispute that will defeat summary judgment.” Alexander v. CareSource,
576 F.3d 551, 560 (6th Cir. 2009). The Townsend Declaration states merely that Service
Jewelry was “harmed,” which “further led to actual financial damages,” but it does not describe
how Service Jewelry’s reputation was impaired or to what extent, what the actual financial
damages were, how they were calculated, or how those damages were caused by the loss of
reputation. (See Docket No. 22-1 ¶¶ 3–5.) Nor can this information be found anywhere in the
record – Service Jewelry has failed to introduce any specific facts supporting its claim of
damages. Furthermore, based on their failure to identify any documents or witnesses related to
the subject of damages, Service Jewelry’s initial disclosures create a strong inference that
Service Jewelry has no evidence regarding this injury that it could place into the record.9
Accordingly, the court will grant summary judgment to Cumulus on Service Jewelry’s
defamation claim.
III.

Claim for Violation of Section 47-18-104(b)(8) of the Tennessee Consumer
Protection Act
The TCPA prohibits “unfair or deceptive acts or practices affecting the conduct of any

trade or commerce.” Tenn. Code Ann. § 47-18-104(b). Prohibited acts and practices include

9

The initial disclosures list the witnesses Service Jewelry claims “have discoverable
information that may support [its] claims,” but that list does not include a single consumer who
could testify that their purchasing decisions were affected by the Apologies or a single expert
who could testify how, or to what extent, Service Jewelry’s reputation was impaired. (Docket
No. 17-1 (Initial Disclosures) ¶ 1.) Nor do the disclosures identify a single financial record that
could be used to demonstrate the impact that the Apologies had on Service Jewelry’s profits or
sales. (Id. ¶ 2.)
18

“[d]isparaging the goods, services or business of another by false or misleading representations
of fact.” Id. § 47-18-104(b)(8). Cumulus argues that the TCPA does not even apply to Service
Jewelry’s allegations, because “the on-air apologies did not ‘criticize or disparage’ the quality of
Services Jewelry’s goods, services, or business.” (Docket No. 18, at pp. 13–14.) At most,
Cumulus asserts, Service Jewelry has alleged that the Apologies damaged its integrity, and the
TCPA does not apply to statements that reflect only upon an entity’s integrity. (Id. (discussing
Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., 876 S.W.2d 818 (Tenn. 1994)).) The
court need not determine whether the TCPA actually applies to the statements in this case,
however, because Service Jewelry’s claim under the TCPA fails on other grounds.
Service Jewelry’s claim under the TCPA fails for the same reasons that its Lanham Act
and defamation claims fail – Service Jewelry has failed to produce affirmative evidence
demonstrating a genuine dispute of fact as to the injury that it claims to have suffered and how
that injury was caused by Cumulus’s alleged misconduct. In order to recover under the TCPA,
the plaintiff must prove “(1) that the defendant engaged in an unfair or deceptive act or practice
declared unlawful by the TCPA and (2) that the defendant’s conduct caused an ‘ascertainable
loss of money or property, real, personal, or mixed, or any other article or commodity, or thing of
value wherever situated . . . .” Tucker v. Sierra Builders, 180 S.W.3d 109, 115 (Tenn. Ct. App.
2005) (quoting Tenn. Code. Ann. § 47-18-109(a)(1)). As discussed above, Service Jewelry has
failed to introduce into the record any evidence relating to the losses that it claims Cumulus
caused. Beyond the conclusory statements in the Townsend Declaration, which are insufficient
to establish a factual dispute regarding damages, the record contains no evidence supporting
Service Jewelry’s claim that it suffered losses of reputation, goodwill, or revenues. Service
Jewelry has, therefore, failed to demonstrate that it has suffered any injury related to its claims in

19

this case, and the court will grant summary judgment to Cumulus on Service Jewelry’s claim
under the TCPA.
IV.

Breach of Contract Claim
Service Jewelry’s breach of contract claim is premised on its allegations that Mr.

DelGiorno “materially deviated from the content called for by the parties’ agreement” during his
live endorsements of Service Jewelry and that, during the period covered by the contract between
Service Jewelry and Cumulus, “[Cumulus] began simultaneously airing statements labeling the
advertisements Service Jewelry contracted for as untrue.” (Docket No. 22, at pp. 7–8 (referring
to the Apologies).) To establish a breach of contract in Tennessee, a plaintiff must show (1) the
existence of an enforceable contract, (2) nonperformance amounting to a breach of the contract,
and (3) damages caused by the breach of contract. Nw. Tenn. Motorsports Park, LLC v. Tenn.
Asphalt Co., 410 S.W.3d 810, 816–17 (Tenn. Ct. App. 2011).10
While the parties do not appear to dispute that the Sales Order and its terms were an
enforceable contract under which Cumulus would provide radio advertising to Service Jewelry,
they disagree over whether the talking points given to Mr. DelGiorno at the May 6, 2014 meeting
were also a part of that contract. Service Jewelry contends that the agreement was to “run radio
advertising comprised of the talking points” (Docket No. 22, at p. 7), while Cumulus argues that
the scope of the contract is restricted to “the Sales Order, its Standard Terms and Conditions, and
the On-Air Campaign form signed by Service Jewelry representatives,” and does not extend to
the talking points (Docket No. 18, at p. 18). Even if the court resolves this dispute in the light
10

The parties appear to agree that Tennessee law applies to the contract between them.
(See Docket No. 18, at pp. 17–19 (applying Tennessee principles of contract law); Docket No.
22, at pp. 7–8 (same); see also Docket No. 17-3 (Decl. D. Elliott), Ex. 3 (providing the terms of
the Sales Order, including that “[t]his agreement shall be construed under and according to the
laws of the State in which the Station’s main studio is located”).)
20

most favorable to Service Jewelry and concludes that the talking points did become part of the
agreement, however, Service Jewelry’s breach of contract claim still fails. Service Jewelry has
failed to demonstrate that Cumulus breached any term of the agreement when Mr. DelGiorno
mentioned Genesis by name in several of the live endorsements or when Cumulus issued the
Apologies.
Regarding whether Cumulus breached the contract when Mr. DelGiorno “materially
deviated” from the talking points by mentioning Genesis by name, Service Jewelry has identified
no contractual term or oral agreement providing that Mr. DelGiorno was bound not to mention
Genesis in the live endorsements; nor does the record contain any such provision. Rather,
Service Jewelry admits that at no point during the May 6, 2014 meeting did it ask Mr. DelGiorno
to refrain from mentioning Genesis by name (Docket No. 23 ¶ 17), and, although the talking
points do not contain Genesis’s name, they also do not prohibit naming Genesis in the live
endorsements.11 The record is devoid of any evidence of a contractual term or agreement, oral or
otherwise, prohibiting Mr. DelGiorno from making statements that are not contained in the
talking points. His mention of Genesis in the live advertisements, therefore, did not (and could
not) breach the contract between the two parties.
Service Jewelry has failed to identify any term in its contract with Cumulus that was
breached when Cumulus issued the Apologies. “[I]t is a basic tenet of contract law that a party
can only advance a claim of breach of written contract by identifying and presenting the actual
11

Furthermore, a week after the advertisements began airing, Service Jewelry’s CFO, Mr.
Townsend, requested that Mr. DelGiono add material to the talking points. It is undisputed that,
on May 12, 2014, Mr. Townsend emailed Mr. DelGiorno to request that Mr. DelGiorno “take
[Genesis] completely down” after Genesis advertised that it would give a free diamond to any
customer who could find a similar diamond for a cheaper price and that, soon after this request,
Mr. DelGiorno began to mention Genesis by name in his live endorsements. (Docket No. 23 ¶¶
22–23.)
21

terms of the contract allegedly breached.” Northampton Rest. Grp., Inc. v. FirstMerit Bank,
N.A., 492 F. App’x 518, 522 (6th Cir. 2012) (quoting Harris v. Am. Postal Workers Union, No.
98-1734, 1999 WL 993882, at *4–5 (6th Cir. Oct. 19, 1999) (per curiam) (unpublished)).
Service Jewelry and Cumulus agreed that Cumulus would air a set number of pre-recorded
advertisements and live endorsements on certain days for a limited period of time, as evidenced
in the Sales Order. Nothing in the Sales Order, Cumulus’s Standard Terms and Conditions, the
On-Air Campaign form, or even the discussions between the parties, contemplates or imposes
any obligation on Cumulus regarding the content that it chooses to air outside of the advertising
for which Service Jewelry contracted. Nor does Service Jewelry identify any term or provision
that could reach such content.12 Service Jewelry has, therefore, failed – as a matter of law – to
demonstrate that Cumulus’s conduct could be found to constitute nonperformance or breach of
the contract.
Accordingly, the court will grant summary judgment to Cumulus on Service Jewelry’s
breach of contract claim.

12

The court notes that, while nothing in the record supports a conclusion that Cumulus
failed to perform the agreement, neither party has addressed whether the record contains
evidence demonstrating that Cumulus breached the implied duty of good faith and fair dealing
that Tennessee law imposes on the performance of every contract. See Lamar Adver. Co. v. ByPass Partners, 313 S.W.3d 779, 791 (Tenn. Ct. App. 2009). Service Jewelry has never advanced
breach of the implied duty of good faith and fair dealing as a basis or theory for its claim of
breach of contract – not in the Complaint, its Response to Cumulus’s Motion for Summary
Judgment, or any other filing. (See Docket No. 9 ¶ 31 (“Cumulus’ actions taken pursuant to the
contract were so far in variance to the terms requested as to constitute nonperformance.”);
Docket No. 22, at pp. 7–8 (arguing that Cumulus’s conduct “constitutes nonperformance and
breach of the contract”).) Even if it were possible to interpret the evidence in the record to raise
a dispute of fact as to whether Cumulus breached its duty of good faith and fair dealing, it would
be manifestly unfair to Cumulus to allow Service Jewelry to proceed to trial on a theory that it
has failed to articulate in pleadings and at summary judgment.
22

CONCLUSION
For the reasons discussed herein, Cumulus’s Motion for Summary Judgment will be
granted.
An appropriate order will enter.
______________________________
ALETA A. TRAUGER
United States District Judge

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