UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30412
Summary Calendar
GLENN FALGOUST and ANGELA FALGOUST
Plaintiffs-Appellants,
versus
WAL-MART STORES, INC. ET AL.,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
(96-CV-484-B-M1)
April 12, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Glenn Falgoust is a self-described “outspoken critic
of Wal-Mart’s” expansion into small towns. His negative views
toward Wal-Mart apparently stem from his experience operating a
White’s Auto store in Donaldsonville, Louisiana which he asserts he
was forced to sell because Wal-Mart opened a store in the same
town. He has appeared in radio and television interviews,
newspaper articles, and public appearances criticizing Wal-Mart
expansion. He and his wife, co-appellant Angela Falgoust, even
formed a consulting business, entitled “Wal-Mess,” to prevent Wal-
Mart expansion into small communities. During one television
interview, appellant appeared on “60 Minutes” and condemned Wal-
Mart for having an adverse effect on his home town of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except for the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
Donaldsonville, Louisiana.
To counteract the appellants’ negative campaign, Wal-Mart
spokespersons also made public appearances, including television
and newspaper interviews, on the subject of Wal-Mart expansion. In
one such television interview, broadcasted from Lancaster,
Pennsylvania entitled “12:30 Live,” Wal-Mart’s Director of
Community Relations, Robert Cheyne, defended Wal-Mart from the
disapproving “60 Minutes” broadcast that featured Falgoust. Based
on comments made by Cheyne during that interview, the Falgousts
sued Wal-Mart claiming that Cheyne defamed them. In addition,
appellants assert that various acts by Wal-Mart constituted unfair
trade practices in violation of Louisiana law. The magistrate
judge granted each of Wal-Mart’s partial motions for summary
judgment and dismissed all of appellants’ claims.
STANDARD OF REVIEW
This court reviews the grant of summary judgment de novo.
Summary judgment is proper if “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with any
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Citrate, 477 U.S. 317, 322-24, 106 S. Ct. 2548, 2252-53 (1986).
Under this standard, all fact questions must be viewed in the light
most favorable to the non moving party, and questions of law are
reviewed de novo. See Hassan v. Lubbock Indep. Sch. Dist., 55
F.3d 1075, 1079 (5th Cir. 1995).
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DISCUSSION
1. Louisiana Unfair Trade Practices Act
Appellants initially argue that the magistrate judge erred in
dismissing their claim under the Louisiana Unfair Trade Practices
Act (the “Act”). The Act provides that “[u]nfair methods of
competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce” are unlawful. La. Rev. Stat.
Ann. § 51:1405(A) (West 1987). Following the lead of Louisiana
appellate courts, we have held that the Act limits private suits
“to consumers and business competitors.” Gardes Directional
Drilling v. U.S. Turnkey Exploration Co., 98 F.3d 860, 867-68 (5th
Cir. 1996); Delta Truck & Tractor, Inc. v. J.I. Case Co., 975 F.2d
1192, 1205 (5th Cir. 1992).
The appellants argue that they are and were direct competitors
with Wal-Mart.1 We disagree. Appellants first claim that their
tire store directly competed with Wal-Mart. The record clearly
demonstrates, however, that by the time the alleged deceptive and
unfair trade practices occurred, the appellants were no longer
involved in the tire business. Thus, they were not competitors of
Wal-Mart.
Appellants also contend that they are current competitors with
Wal-Mart because they operate a consulting business opposing Wal-
Mart expansion. We disagree. Appellants run a consulting business
aimed at battling Wal-Mart expansion while Wal-Mart runs an
1
Appellants do not assert that they qualify as “consumers,” so we
address only whether they were “competitors” of Wal-Mart.
3
international chain of retail stores. The parties are not
“[p]ersons endeavoring to do the same thing and each offering to
perform the act, furnish the merchandise, or render the service
better or cheaper than his rival.” Black’s Law Dictionary 284 (6th
ed. 1990). Since the parties are not competitors, the Act does not
grant appellants a private right of action. See Gardes Directional
Drilling, 98 F.3d at 868. Therefore, the magistrate judge’s grant
of summary judgment was correct.
2. Defamation
Next, appellants argue that Cheyne defamed them by making the
following comments on the “12:30 Live” program:
You’ve got to understand, 60 Minutes is investigative
journalism. They have an opinion before they produce the
show, and they’re going to go out and shoot enough film
to support their position. They did an excellent job of
that. I simply believe that their position was entirely
wrong, not based on fact, and unfortunately, having
viewed much of the film, for example with our Vice-
President Tom Saye, was very, very biased. One of the
most critical parts of that entire show that offended all
of us at Wal-Mart was the reference to this little town
in Louisiana . . . Donaldsonville. I have letters from
the Mayor and leading citizens of Donaldsonville that
were written to CBS after that program, refuting all of
their claims that Donaldsonville is a dying town. The
leading gentlemen on that program, Glenn Falgoust, what
they didn’t tell you on 60 Minutes, is he wasn’t driven
out of business, he sold his business at a significant
profit. They failed to mention that. They failed to
mention that businesses today have increased 50% in the
last 20 years in that city of Donaldsonville. They shot
the Mayor of Donaldsonville with a tape, he supported
Wal-Mart strength in that town. CBS refused or at least
declined to use that portion. You can take pictures of
Washington, D.C., Chicago, Detroit, possibly in this
county, that will make it look poor. It’s exactly what
they did.
Although appellants do not specify on appeal precisely which
remarks defamed them, they contend that Cheyne’s rebuttal of the 60
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Minutes broadcast harmed their ability to function as consultants.
Injury, however, is just one of several factors that must be proven
to succeed in a defamation action. Louisiana plaintiffs must also
show that the defendant published defamatory words that were
communicated to some person, that the alleged defamatory remarks
were false, and the speaker acted with actual malice (in the case
of public figures). See Cangelosi v. Schwegmann Bros. Giant Super
Mkts., 390 So.2d 196, 198 (La. 1980). Since appellants are limited
public figures,2 summary judgment should be granted for the
defendant unless the plaintiffs have proven by clear and convincing
evidence that a genuine issue of actual malice exists.3 See Romero
v. Thomson Newspapers (Wisconsin), Inc., 648 So.2d 866, 869 (La.
1995). Proving actual malice is a difficult burden, especially
since proof that the defendant published false statements is not,
by itself, sufficient to demonstrate actual malice. See Kaufman,
113 F.3d at 560; Bose Corp. v. Consumers Union of United States,
Inc., 466 U.S. 485, 511, 104 S. Ct. 1949, 1965 (1984). “As long as
a defendant does not act knowing his statement is false or with
reckless disregard of its truth, actual malice will not be
2
The appellants do not contest their status as “limited public
figures.” That they meets all of the qualifications is irrefutable
since they have “thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the issues
involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S. Ct.
2997, 3009 (1974).
3
“Actual malice” exists when the speaker realizes his statement was
false or speaks with reckless disregard of whether it was false. See
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726
(1964); Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 560
(5th Cir. 1997).
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present.” Kaufman, 113 F.3d at 561.
Although portions of Cheyne’s comments were technically
inaccurate, appellants have failed to show that he made the
statements knowing of their falsity or with reckless disregard for
the truth. For instance, Cheyne stated that, “what they didn’t
tell you on 60 Minutes, is [Falgoust] wasn’t driven out of
business, he sold his business at a significant profit.” The
“talking points,” however, from which Cheyne based his remarks,
shows what he intended to say: “the new owner of the tire store
which Mr. Falgoust sold, is we understand, doing just fine and
making a profit.” Appellant has produced no clear and convincing
record evidence demonstrating that Cheyne intended to mislead his
audience or acted with “actual malice.” Rather, a comparison of
the two statements and the record shows that he made an honest
error.
Moreover, Cheyne’s comments are not defamatory vis-a-vis the
appellants because a third party watching the “12:30 Live” program
would not “have reasonably understood the communication, taken in
context, as intended in a defamatory sense.” Davis v. Borskey, 660
So.2d 17, 22 (La. 1995). Cheyne’s remarks were not about the
appellants--he referred to the lack of objectivity demonstrated by
“60 Minutes” and its bias in reporting the events in
Donaldsonville. Cheyne merely referred to the Falgousts’ sale of
their tire business as an example in which “60 Minutes” failed to
report accurately on Wal-Mart’s impact. Even if the comment was
inaccurate, it was not intended to defame the appellants, nor did
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Cheyne’s remarks accuse the appellants of being untruthful or
expose them to public ridicule. See id. Thus, their defamation
claim fails.
Appellants refer to other alleged defamatory statements,
but as these referred to the town of Donaldsonville, appellants
state no claim on their own behalf.
CONCLUSION
Finding no reversible error, the magistrate judge’s order
granting summary judgment for appellee Wal-Mart Stores,
Incorporated is AFFIRMED.
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