IN THE SUPERIOR COURT
OF THE STATE OF DELAWARE
IMAGES HAIR SOLUTIONS )
MEDICAL CENTER, a division )
Of IMAGES, INC., and )
TOM PRENTICE, )
)
Plaintiffs, )
v. ) C.A. No. N13C-05-077 WCC
)
FOX TELEVISION STATIONS, )
INC., a Delaware corporation, and )
JOYCE EVANS, )
)
Defendants. )
Submitted: October 5, 2015
Decided: January 29, 2016
Defendants’ Motion for Summary Judgment -- GRANTED
MEMORANDUM OPINION
Austen C. Endersby, Esquire, Michael K. Twersky, Esquire, Fox Rothschild LLP,
919 N. Market Street, Suite 300, Wilmington, DE 19801. Attorneys for
Defendants.
Daniel A. Griffith, Esquire, Whiteford Taylor Preston, LLC, 405 North King
Street, Suite 500, Wilmington, DE 19801. Attorney for Plaintiffs.
CARPENTER, J.
Before the Court is Defendants Fox Television Stations, Inc. (“Fox”) and
Joyce Evans (“Evans”) (collectively, “Defendants”) joint Motion for Summary
Judgment. The Plaintiffs in this matter are Images Hair Solutions Medical Center
(“Images”) and Tom Prentice (“Prentice”) (collectively, “Plaintiffs”). On
December 20, 2013, the Court granted Defendants’ Motion to Dismiss Plaintiffs’
defamation and false light claims. 1 After discovery, Defendants have moved for
summary judgment on Plaintiffs’ remaining claim for tortious interference with
prospective business relations. For the foregoing reasons, the Motion will be
GRANTED.
BACKGROUND
Tom Prentice, together with his wife Paulette, owned and operated Images, a
business offering restorative hair loss treatments.2 The central focus of Plaintiffs’
business model was the MEP-90 Hair Growth Stimulation System (“MEP-90”), a
“revolutionary” laser-device recently approved by the FDA to treat androgenetic
alopecia in females. 3 After securing start-up financing from an investor and
contracting with a medical advisor, the Prentices opened the facility in April 2011. 4
To advertise Images’ services, Plaintiffs purchased airtime on local radio stations
1
Images Hair Sols. Med. Ctr. v. Fox News Network, LLC, 2013 WL 6917138, at *1 (Del. Super.
Dec. 20, 2013).
2
Pls. Compl., at 3, ¶ 11.
3
Id. at 4, ¶ ¶ 13-16; Pls. Br. in Opp’n to Defs. Mot. for Summ. J, at 3.
4
Pls. Compl., at 4, ¶¶ 17-19.
2
and television shows, including Talk Philly on CBS and the 10! Show on NBC, all
of which were broadcasted throughout the greater-Philadelphia area. 5
In March 2012, Defendant Joyce Evans, a reporter for Fox News, contacted
Plaintiffs about producing and airing a segment on Images' MEP-90 treatments.
Evans allegedly assured Plaintiffs that the broadcast would portray Images and the
MEP-90 in a positive light. Relying on those assurances, Plaintiffs agreed to
participate in the segment, which included interviews with Images’ staff, a
demonstration of the MEP-90 treatment on an Images’ patient, and the patient’s
testimonial about her results. Following filming, Evans allegedly reiterated the
positive nature of the segment and informed Plaintiffs that it would air directly
after American Idol, when Fox’s ratings were highest, on May 16, 2012. Given
this information, Plaintiffs encouraged their current and prospective customer base
to tune into Fox on the night of the broadcast.
The final segment, which the Court has reviewed, was approximately five
minutes long and included footage in addition to the scenes filmed at Images,
interviews with two doctors, textual explanations of Images’ business, and
commentary by Evans. Ultimately, Defendants are alleged to have “manipulated”
the raw footage so as to present “Images and the MEP-90 system in the most
5
Id. at 4-5, ¶¶ 20-22.
3
negative light possible.” 6 Specifically, Plaintiffs claim Defendants selectively
edited out a significant amount of the patient’s positive feedback 7 and replaced it
with negative commentary by individuals Evans recruited.8 Additionally,
Plaintiffs allege the following statements presented “misleading information and
factual inaccuracies:”9
(1) Evans's statement that she was “following up” on the “buzz” implying
that she had conducted a prior investigation on Images, which she had not.
6
Pl. Resp. in Opp’n to Def. Mot. for Summ. J., at 6.
7
Id. at 6-7. Specifically, Plaintiffs object to the removal of the following portions of the raw
footage with respect to the client’s, Ms. Shahikian, testimonial:
• In the raw footage, Ms. Shahikian said on camera, “I’m not sure about how many
treatments but I remember running in here in the middle of December and telling the girls
in the front, ‘Today is the day my hair looks different. Today is the day that I’m okay to
come out with the wind blowing’”. That positive comment in the raw footage was cut.
Ms. Shahikian also said on camera in the raw footage that the MEP-90 device is “just
something you have to try.” This comment was cut out.
• Ms. Shahikian stated on camera in the raw footage “I feel better. I wake up every day, I
do my hair, nobody is staring at me.” This positive comment about the MEP-90 device
from the raw footage was cut as well.
• In reflecting on the positive results she received, Ms. Shahikian said in the raw footage
“How do you put a price on that?” This positive evaluation was also edited out.
• In the raw footage, Ms. Shahikian said “I realize I can’t turn back the clock to where I
used to be, but at least let me be able to go out and feel good.” This statement was also
edited out.
• In the raw footage, Ms. Shahikian stated “Not only am I growing new hair and I can
see that from a number of different angles, but what I’ve got is healthier. There were two
different textures of hair on my head not too long ago, oh yeah.” This comment was
edited out of the final broadcast.
• The raw footage had a comparison of Ms. Shahikian’s hair before and after her
treatment with the MEP-90 device with Ms. Shahikian stating “Look at my picture. Look
at me now.” That portion of the raw footage was edited out.
• In the raw footage, Mr. Prentice principal of Images described the process of how
Images’ customers receive treatment. That description stated only that customers receive
oversight from Images’ physician, “Dr. Luke.”
Id. (internal citations omitted).
8
Id. at 7.
9
Id. at 8.
4
(2) Evans's statements that Kim was “cooking under the hood” and that she
became “flushed” during treatment; thus, portraying the treatment as
uncomfortable.
(3) The medical doctor's statements that “many if not all” of the positive
results were attributable to the topical solution and not the MEP–90
machine.
(4) Evans's statement that patients at Images were required to go to their
family doctor for examination and blood-work prior to being treated.
(5) Evans's comparison of Images to “internet medicine.”
(6) The medical doctor's statement that he did not believe the MEP–90
treatment was worth $50 a treatment. 10
Plaintiffs claim their business and reputation was “destroyed” as a result of
the broadcast.11 Specifically, they allege Images realized an “obvious and
precipitous drop in business,” lost profits, and lost value in its unsuccessful
attempts to sell its locations for total damages of approximately $5.2 million. 12
On May 9, 2013, Plaintiffs filed a Complaint asserting claims against
Defendants for (1) defamation; (2) false light and invasion of privacy; and (3)
tortious interference with prospective business relations. Defendants moved to
dismiss Plaintiffs Complaint in response on July, 15, 2013. The Court heard oral
10
Id. at 8-9.
11
Id. at 9.
12
Id. at 10 & Ex. C. Plaintiffs also cite two emails they received as consequences of the
broadcast:
• Ms. Shahikian, who experienced positive results from the procedure (depicted in the
broadcast as falsely positive results) wrote to Defendants, saying “…Watching your piece
that night sickened me!! Why didn’t you tell me this was going to be some one-sided
debate? You chose words from sentences that made me look angry, not pleased,…What
you did to Tom and Paulette was just downright WRONG!!!
• The producer from another television station wrote to Images, advising that
Defendants’ “discredited” the process and said about Defendants “I can’t believe they did
that”. Id. at 9 (internal citations omitted).
5
arguments on August 26, 2013 and granted Defendants’ motion with respect to the
defamation and false light claims, but denied it as to the tortious interference claim
in accordance with its December 20, 2013 opinion.13 On September 9, 2015, after
discovery, Defendants filed the instant Motion for Summary Judgment.
STANDARD OF REVIEW
The Court will grant summary judgment when it is clear from the record
“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.” 14 If the movant is able to show “that the
undisputed facts support [its] claims or defenses,”15 the burden shifts to the non-
moving party to demonstrate that material facts remain in dispute for “resolution
by the ultimate fact-finder.” 16 While the Court is required to view the evidence in
a light most favorable to the non-moving party, 17 “[t]hat evidence… must be more
than bare assertions without supporting facts.”18
13
Images Hair Sols. Med. Ctr., 2013 WL 6917138, at *1.
14
Super. Ct. Civ. R. 56 (c).
15
See Gerstley v. Mayer, 2015 WL 756981, at *3 (Del. Super. Feb. 11, 2015). See also Acro
Extrusion Corp. v. Cunningham, 810 A.2d 345, 347 (Del. 2002) (defendants must show both
“the absence of a material fact and entitlement to judgment as a matter of law”).
16
See Gerstley, 2015 WL 756981, at *3 (“It is not enough for the opposing party merely to assert
the existence of such a disputed issue of fact. The opponent to a motion for summary judgment
‘must do more than simply show that there is some metaphysical doubt as to material facts.’”).
See also Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
17
See Brzoska, 668 A.2 at 1364. See also Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99 (Del.
1992) (“In discharging this function, the court must view the evidence in the light most favorable
to the non-moving party.”).
18
Pfeiffer v. State Farm Mut. Auto. Ins. Co., 2011 WL 7062498, at *4 (Del. Super. Dec. 20,
2011).
6
Summary judgment is also appropriate “after adequate time for
discovery…against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.”19 In such cases, the Delaware Supreme Court has
found “there can be ‘no genuine issue as to any material fact,’ since a complete
failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”20 Thus, the non-moving party must
show sufficient evidence exists “for a jury to return a verdict for that party” and
where “the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”21
DISCUSSION
In the instant motion, Defendants contend: (1) Plaintiffs failed “to adduce
evidence on th[e] necessary elements” of tortious interference with prospective
relations claim, namely with respect to the requisite elements of intent to interfere
and improper conduct; and (2) the First Amendment bars the Plaintiffs “from
trying to plead around a fatally flawed defamation claim by relabeling it as another
19
See Health Sols. Network, LLC v. Grigorov, 2011 WL 443996, at *2 (Del. Feb. 9, 2011)
(quoting Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991)).
20
See id.
21
See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 264 (1986)(emphasis in
original)).
7
tort.”22 In response, Plaintiffs argue (1) ample evidence supports their tortious
interference claim and (2) issues of “intent” cannot properly be resolved on a
motion for summary judgment. 23
I. Elements of Tortious Interference
To succeed on a claim for tortious interference with prospective business
relations, a plaintiff must prove: “(a) the reasonable probability of a business
opportunity, (b) the intentional interference by defendant with that opportunity, (c)
proximate causation, and (d) damages.”24 These elements must, however, “be
considered in light of a defendant's privilege to compete or protect his [or her]
business interests in a fair and lawful manner.” 25 In other words, even cases of
intentional interference will fail when unaccompanied by some proof that the
defendant’s conduct was improper.26
22
Defs. Br. in Supp. of Mot. for Summ. J., at 2, ¶¶ 5-6.
23
Pls. Br. in Opp’n to Defs. Mot. for Summ. J., at 11-12.
24
See DeBonaventura v. Nationwide Mut. Ins. Co., 428 A.2d 1151, 1153 (Del. 1981). See also
Kimbleton v. White, 2014 WL 4386760, at *8 (D. Del. Sept. 4, 2014) (applying Delaware law)
aff'd, 608 F. App'x 117 (3d Cir. 2015); Hursey Porter & Associates v. Bounds,1994 WL 762670,
at *16 (Del. Super. Dec. 2, 1994) (“The last element's reference to ‘privilege’ has the same
meaning as ‘with justification’ or ‘not improper’ as used in connection with claims of tortious
interference with contractual relations.”).
25
See DeBonaventura, 428 A.2d at 1153.
26
See Agilent Techs., Inc. v. Kirkland, 2009 WL 119865, at *8 (Del. Ch. Jan. 20, 2009)(“An
alleged interference in a prospective business relationship is only actionable if it is wrongful.”).
See also Restatement (Second) of Torts § 766B (1979) (“One who intentionally and improperly
interferes with another's prospective contractual relation…is subject to liability to the other for
the pecuniary harm resulting from loss of the benefits of the relation, whether the interference
consists of (a) inducing or otherwise causing a third person not to enter into or continue the
prospective relation or (b) preventing the other from acquiring or continuing the prospective
relation.”).
8
For purposes of Defendants’ Motion to Dismiss, this Court found Plaintiffs’
allegations that a number of customers had cancelled appointments the day after
the broadcast sufficed, at that juncture, to plead the first element of reasonable
probability of business opportunity. 27 However, the Court expressed its concern,
sua sponte, about whether Plaintiffs could show the requisite intent and
impropriety:
It is unclear to the Court what facts would support the allegation that
Defendants, through the airing of their broadcast, intended to cause
Plaintiffs' customers to cancel appointments or cease treatment or that
Defendants knew such was certain or substantially certain to occur.
Moreover, even if Plaintiffs were to point to facts supporting this contention,
such interference must also be improper. 28
Nevertheless, the Court allowed the tortious interference claim to proceed given
the preliminary posture of the case and that the parties had not briefed the issue. 29
Now, almost two years of discovery later, Defendants move for summary judgment
on the grounds that Plaintiffs have yet to produce evidence that (1) Defendants
intended to interfere with Images’ business or that (2) Defendants’ reporting and
airing of the broadcast was improper.
27
See Images Hair Sols. Med. Ctr., 2013 WL 6917138, at *6 (“Although Plaintiffs did not plead
the names or identifying information within the Complaint, such is not necessary in the pleading
stage. Plaintiffs have justifiable reasons for initially excluding the names of their potential clients
and, as the case progresses, these identities are the proper subject of discovery and further
inquiry.”). Defendants do not, in the instant motion, again challenge this element.
28
Id. at *7.
29
See id.
9
A. Intentional Interference
One intentionally interferes with another’s prospective business when he or
she acts with a “desire[] to bring about” the interference or with knowledge that
“the interference is certain or substantially certain to occur as a result of his [or
her] action.”30 A finding of intent by “substantial certainty” requires more than just
knowledge of a likelihood or risk that interference could result.31
Here, Defendants argue Plaintiffs failed to offer evidence proving their
conduct, airing the broadcast, was motivated by an intentional desire to harm
Images or pursued despite substantial certainty that such harm would result.32
Plaintiffs counter that a “cursory viewing” of the segment itself supplies adequate
support for their position that the “only possible motivation” behind Defendants’
decision to edit and air a broadcast depicting the MEP-90 in such a negative light
was their desire to ruin the public’s perception of Images. 33 According to
Plaintiffs, the “agenda-driven” broadcast was intended “to take a
product…favorably portrayed by Defendants’ competitors (CBS and NBC) and
30
See Restatement (Second) of Torts § 766B (1979). See also Restatement (Second) of Torts §
8A (1965) (stating that one acts intentionally when he or she “desires to cause consequences of
[the] act, or …believes that the consequences are substantially certain to result from it”).
31
See Restatement (Second) of Torts § 8A (1965)(“As the probability that the consequences will
follow decreases, and becomes less than substantial certainty, the actor's conduct loses the
character of intent, and becomes mere recklessness, as defined in § 500. As the probability
decreases further, and amounts only to a risk that the result will follow, it becomes ordinary
negligence, as defined in § 282.”).
32
Defs. Br. in Support of Mot. for Summ. J., at 9-10, ¶¶ 26-28.
33
Pls. Br. in Opp’n to Defs. Mot. for Summ. J., at 8-9, 11-12.
10
about which there had been a ‘buzz’…and destroy it.” 34 Plaintiffs also maintain
that it would be improper for this Court to resolve an issue of intent on a motion
for summary judgment.
It is generally true that, “when an ultimate fact to be determined is one of
intention[,] a decision as to intent on motion for summary judgment is
inappropriate.”35 However, Delaware law makes clear that this “general rule
necessarily supposes that there is some evidence of the required intent.”36 Thus,
where, as here, “a plaintiff … has had fair opportunity to utilize discovery to
explore his defendant's subjective state of mind and yet cannot point to anything
tangible which indicates that defendant had the intent…to interfere, plaintiff cannot
prevail and the defense motion must be granted.”37
In its December 2013 opinion, this Court expressed doubt as to the viability
of Plaintiffs’ tortious interference claim, finding it “difficult to envision the motive
or intent of the Defendants in interfering with the Plaintiffs' business
relationship.”38 After two years of discovery, the Court has before it a copy of
Images’ business plan, a damages calculation, emails received by the parties, and,
perhaps most relevant to the present inquiry, depositions of the Prentices and Ms.
34
Id. at 8-10.
35
See Murphy v. Godwin, 303 A.2d 668, 672-73 (Del. Super. 1973).
36
See id. (emphasis added).
37
See id.
38
Images Hair Sols. Med. Ctr., 2013 WL 6917138, at *7.
11
Evans. Unfortunately for Plaintiffs, the record as developed serves only to further
undermine their tortious interference claim.
In her deposition testimony, Evans discussed her obligation to provide both
sides of a news story and stated that the purpose of the Broadcast was to provide
Fox’s audience with a comprehensive and balanced look at the information she
recovered on a newly FDA-approved device from a spectrum of sources so that
viewers could “make up their own minds about what they’re seeing.”39 To achieve
this result, she testified that it is customary, as a news reporter at Fox, to consult a
number of experts from varying fields especially when reporting on issues
involving medicine or technology. 40 Evans further stated that “there was never any
intent to harm the Prentices in anyway. …We did both sides, which is what I
explained would happen from the very beginning.” 41 She testified she was
surprised to learn of the Prentices’ complaints and that she relayed them to her
supervisor immediately. Mr. Prentice’s deposition testimony provides additional
insight as to Defendants’ conduct after the Broadcast, revealing that Fox responded
to Plaintiffs’ dissatisfaction by removing the segment from the network’s public
39
Evans Dep. at 129-130.
40
Id. at 78-80.
41
Id. at 166.
12
archives and offering the Prentices an opportunity to “come in and rebut the
statements,” which they declined. 42
Having reviewed the record as a whole, this Court simply cannot agree with
Plaintiffs’ position that Defendants’ “only possible motivation” for the Broadcast
was to prevent Images from securing future business. Rather, the discovery tends
to show that the Defendants’ intention was simply to do their jobs of reporting the
news. As Mrs. Prentice’s testimony makes apparent, Plaintiffs were familiar with
paying to advertise their services on local television networks and understood that
their voluntarily participation in the Broadcast at no expense was not for
advertisement, but for news purposes.43 While the Plaintiffs hoped the Broadcast
would provide the same benefit as their paid advertisements, it is simply not the
function of the news to ensure that result. There is nothing here to suggest
Defendants intended anything other than to provide a comprehensive review of the
advantages and disadvantages of the MEP-90 system. Even if the Court were to
accept Plaintiffs’ dismay that positive footage was removed from the Broadcast to
include commentary of other professionals as sufficient to prove intent to interfere,
the claim would still fail because such conduct is justified by virtue of Defendants’
journalistic profession. “[A] broadcaster whose motive and conduct is intended to
foster public awareness or debate cannot be found to have engaged in the wrongful
42
Id. at 300.
43
Paulette Prentice Dep. at 46-49.
13
or improper conduct required to sustain a claim for interference with contractual
relations.”44 Thus, the Court need not decide the element of intent because
Defendants cannot be found to have acted with the requisite impropriety. 45
B. Improper Conduct
Whether a given interference was improper depends on the facts and
circumstances of the specific case. Delaware courts assess the propriety of a
defendant’s conduct by reference to the factors set forth in § 767 of the
Restatement (Second) of Torts:46
(a) the nature of the actor's conduct,
(b) the actor's motive,
(c) the interests of the other with which the actor's conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and
the contractual interests of the other,
(f) the proximity or remoteness of the actor's conduct to the interference and
(g) the relations between the parties.47
The ultimate inquiry then is “whether, upon a consideration of the relative
significance of the factors involved, the conduct should be permitted without
liability, despite its effect of harm to another.” 48
44
Huggins v. Povitch, 1996 WL 515498, at *9 (N.Y. Sup. Ct. Apr. 19, 1996).
45
See Hursey Porter & Assoc. v. Bounds, 1994 WL 762670, at *16 (Del. Super. Dec. 2, 1994)
(“Even if plaintiff can establish the remaining elements of this cause of action, it cannot satisfy
the ‘without privilege’ element. As a matter of law, the Bank's interference with the plaintiff's
prospective business opportunity was not improper under the circumstances of this case. For this
reason, defendants' summary judgment motion will be granted as to this claim.”).
46
See, e.g., WaveDivision Hldgs., LLC v. Highland Capital Mgmt., L.P., 49 A.3d 1168, 1174
(Del. 2012).
47
See Restatement (Second) of Torts § 767 (1979).
14
The first consideration, the nature of the conduct at issue, involves inquiry
into how Defendants caused the alleged interference. The Broadcast, as promoted,
edited, and aired is the means by which Defendants are accused of influencing
Plaintiffs’ prospective customers. 49 The Restatement provides that consideration
of particular business customs or practices may be significant in determining
whether Defendants’ means was improper or not. 50 As Evans’ deposition
testimony supports, it is customary for the news to broadcast reports covering both
sides of an issue of public interest. Plaintiffs have adduced no evidence purporting
to prove this case was any different. Therefore, this factor must weigh in favor of
Defendants.
The second factor of motive concerns whether Defendants desired to bring
about the interference as the sole or partial reason for the broadcast. Evans’s
48
See id.
49
Specifically, Plaintiffs maintain Defendants’ interfered by:
• Recogniz[ing] the “buzz” created by Images’ burgeoning business and revolutionary
hair-restoration device;
• Solicit[ing] Images to have the device featured on Defendants’ news program
• Advis[ing] Images that the segment would present the device in a favorable light,
thereby inducing Images’ to maximize Images’ customers’ viewing of the segment;
• Strategically tim[ing] the segment to maximize the viewership of the segment;
• Edit[ing] the raw footage of the segment so as to eliminate the positive features of the
device, misrepresent[ing] the experience of using the device and edit[ing] out the positive
results obtained by a sample customer. Instead, in the editing process, Defendants
replaced the positive “raw footage” with negative commentary and factual
misrepresentations about the device.
Pls. Resp. in Opp’n to Def. Mot. for Summ. J., at 1.
50
See Restatement (Second) of Torts § 767 (1979) (“Violation of recognized ethical codes for a
particular area of business activity or of established customs or practices regarding disapproved
actions or methods may also be significant in evaluating the nature of the actor's conduct as a
factor in determining whether … interference with…contractual relations was improper or not.”).
15
deposition testimony reveals her motive was to inform Fox viewers about multiple
perspectives on a recently FDA-approved product. Plaintiffs have not put forth
any evidence to the contrary, which is especially significant because “[o]nly if the
defendant's sole motive was to interfere with the contract will this factor support a
finding of improper interference.”51 Thus, this factor weighs in favor of finding
Defendants’ conduct was not improper.
The third and fourth factors focus on the interests of the parties. The interest
with which the Broadcast allegedly interfered was Plaintiffs’ interest in prospective
business. This factor requires consideration of the definiteness of the expectancy,
and carries less weight here than it would in cases involving interference with
existing contractual relationships. The interest sought to be advanced by the
Defendants’ conduct was to provide for the public a comprehensive report on a
new technological device that had recently attracted local attention. A balance of
these factors weighs in favor of finding Defendants did not act improperly.
Additionally, consideration of the social interests at stake, the fifth Restatement
factor, likewise weighs heavily in favor of Defendants given the First Amendment
protections afforded to the news and society’s interest in obtaining balanced
reporting.
51
See WaveDivision Holdings, LLC, 49 A.3d at 1174.
16
In terms of the proximity or remoteness of Defendants’ conduct to the
alleged interference, the deposition testimony belies Plaintiffs’ contention that the
Broadcast directly interfered with Images’ prospective customers. While
Plaintiffs’ Complaint alleges five of six customers scheduled for appointments the
day after the Broadcast cancelled, Mr. Prentice’s deposition reveals that there is no
evidence anyone cancelled that day because of the Broadcast and that at least nine
customers did in fact come into Images for appointments that day. 52 Moreover,
when asked if she could name a single customer who avoided Images or stopped
doing business there as a result of the Broadcast, Mrs. Prentice responded she
could not identify any and all she knew was that Images “didn’t get calls” like it
did after the paid advertisements. 53 As such, this factor also weighs in favor of
finding Defendants did not act improperly.
Finally, the Court must consider the relationship between the parties
involved. Defendants role was that of a public news source, Plaintiffs were
voluntary participants in Defendants’ report, and those who viewed the Broadcast
were Defendants’ audience, some of which included Plaintiffs’ prospective
customers. This was not a situation where Plaintiffs paid Fox to advertise its
services, like they arranged with other networks on previous occasions, and Fox
was under no obligation to tailor its Broadcast to Plaintiffs’ liking. Even if
52
Tom Prentice Dep., at 232-33.
53
Paulette Prentice Dep., at 56.
17
Defendants’ broadcast could be characterized as “interfering” with Plaintiffs’
business, such interference was for the purpose of furthering their legitimate
interest in relaying pertinent and well-balanced information to its viewership.
Thus, this factor also weighs in favor of finding Defendants did not act improperly.
Based on the foregoing, the Court concludes as a matter of law that any
interference Defendants may have had with Plaintiffs’ prospective business was
justified, or not improper. As such, Defendants are entitled to summary judgment
on Plaintiffs’ tortious interference claim.
II. First Amendment & Tortious Interference
Defendants also advance the argument that the First Amendment prohibits
this Court from finding Defendants liable for tortious interference based on their
non-defamatory broadcast. While the protections afforded by the First
Amendment are broad, particularly in how the news is reported, the Court need not
decide this issue because it has granted summary judgment on the grounds that
Defendants’ conduct was not improper.
CONCLUSION
The Court has been extremely patient and has provided Plaintiffs a full
opportunity to explore through discovery their tortious interference allegations. At
best, Plaintiffs here were naive to believe that Fox news would do nothing more
than a “flouf” piece and not investigate the MEP-90 system beyond Plaintiffs’ own
18
comments. While they may feel they were mislead and their business unfairly
portrayed, such sentiments do not provide a basis to legally challenge the
Broadcast. The piece obviously was not what Plaintiffs had hoped for but, by
entering the public forum, they opened Images and the hair loss treatment it
provides to critical review. No wrongful conduct occurred here. Summary
judgment is hereby entered in favor of Defendants.
IT IS SO ORDERED.
/s/ William C. Carpenter, Jr.
Judge William C. Carpenter, Jr.
19