Owens v. Lead Stories, LLC

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CANDACE OWENS, in her individual )
capacity, and CANDACE OWENS, LLC, )
a Delaware limited liability company, )
)
Plaintiffs, )
) C.A. No. S20C-10–016 CAK
- against - )
)
LEAD STORIES, LLC, a Colorado )
limited liability company, and GANNETT )
SATELLITE INFORMATION )
NETWORK, LLC d/b/a USA TODAY, a )
Delaware limited liability company, )
)
Defendants. )

Submitted: June 11, 2021
Decided: July 20, 2021

Defendant Lead Stories, LLC’s Motion to Dismiss for Lack of Personal
Jurisdiction under Delaware Superior Court Civil Rule 12(b)(2)

Defendants’ Motions to Dismiss for Failure to State a Claim under Delaware
Superior Court Civil Rule 12(b)(6)

MEMORANDUM OPINION AND ORDER

Sean J. Bellew, Esquire, Bellew LLC, 2961 Centerville Road, Suite 302,
Wilmington, DE 19808, Attorney for Plaintiffs.

Todd V. McMurtry, Esquire and Jeffrey A. Standen, Esquire, Hemmer DeFrank
Wessels, PLLC, 250 Grandview Drive, Suite 500, Fort Mitchell, KY 41017,
Attorneys for Plaintiffs (Pro Hac Vice).
John P. Coale, Esquire, 2901 Fessenden Street, NW Washington, DC 20008,
Attorney for Plaintiffs (Pro Hac Vice).

Garvan McDaniel, Esquire, Hogan McDaniel, 1311 Delaware Avenue,
Wilmington, DE 19806, Attorney for Defendant Lead Stories, LLC.

Craig Weiner, Esquire and Reena Jain, Esquire, Akerman LLP, 1251 Avenue of
the Americas, 37th Floor, New York, NY 10020, Attorneys for Defendant Lead
Stories, LLC (Pro Hac Vice).

Steven T. Margolin, Esquire, Lisa Zwally Brown, Esquire and Samuel L. Moultrie,
Esquire; Greenberg Traurig, LLP, The Nemours Building, 1007 North Orange
Street, Suite 1200, Wilmington, DE 19801, Attorneys for Defendant Gannett
Satellite Information Network, LLC.

Michael J. Grygiel, Esquire and Cynthia Neidl, Esquire, Greenberg Traurig, LLP,
54 State Street, 6th Floor, Albany, NY 12207, Attorneys for Defendant Gannett
Satellite Information Network, LLC (Pro Hac Vice).

Michael Pusateri, Esquire, Greenberg Traurig, LLP, 2101 L Street, NW, Suite
1000, Washington, DC 20037, Attorney for Defendant Gannett Satellite
Information Network, LLC (Pro Hac Vice).

KARSNITZ, J.
 INTRODUCTION

Today’s world of technological wizardry presents endless opportunities for

conflict and battle like Kilkenny cats. Social influencers can sway opinions of

millions of people controlling politics and money. Those with substantial control

over social media like Facebook struggle to control fact from fiction. The case

before me presents one battle in the social media wars. It also presents a real-life

struggle affecting reputations, the ability to earn substantial income, and the ability

to fact-check.

The political aspects of this case are manifest but must be ignored in favor of

application of the law. The law and courts in general are often slow to react to

changing times. By way of example, the jurisdictional principles I struggle with in

this Opinion were not originally designed for the digital world but are evolving and

adapting.

Elements of free speech also pervade this case. While many have argued that

those private actors who control aspects of the internet should have their control

limited, as the law currently exists, private actors are not constrained by First

Amendment constitutional principles. I leave to further debate the question of

whether these private actors should be otherwise restricted in their control of content.

One final preliminary note. I have no doubt the parties to this suit have

divergent views on many things. I also have no doubt they have acted in good faith

3
in their efforts to promote their views as shown by their conduct which forms the

factual basis for this lawsuit.

PERSONAL JURISDICTION OVER LEAD STORIES, LLC

Today I am asked to determine the constitutionally permissible reach of the

Delaware long-arm statute1 through cyberspace. This case stands at the intersection

of the traditional law of personal jurisdiction, particularly with respect to interstate

commerce in tangible goods and services, and the modern use of websites on the

Internet to publish, disseminate and sell information. As this Court has stated:

The pending motions [to dismiss] require this Court to probe questions
of personal jurisdiction at perhaps their most theoretical. Courts across
the country increasingly are confronted with cases challenging online
conduct and must determine issues of personal jurisdiction over actors
engaged in such conduct. These cases highlight the reality that the
Internet, which increasingly forms an important part of our day-to-day
interactions, exists outside of the state boundaries that define
considerations of jurisdiction.2

However, in my view, the fact that the product allegedly causing the tortious

injury in this case is modern – digital information disseminated through the Internet

– does not necessarily require a departure from the more traditional jurisprudence of

personal jurisdiction, or a unique or even different jurisdictional analysis. I am not

deciding this case using, as the determinative factor, the fact that the product

1
10 Del. C. § 3104(c).
2
Rotblut v. Terrapinn, Inc., 2016 WL 5539884, at *1 (Del. Super. Sept. 30, 2016).

4
allegedly causing tortious injury is electronic media, as opposed to any other form

of media or a tangible physical object. An entity’s reaching beyond its state’s

borders, allegedly causing tortious injury in Delaware by an act committed in

Delaware, should not be treated differently for personal jurisdiction purposes merely

because the act is committed over the Internet.

BACKGROUND

Defendant Lead Stories, LLC, a Colorado limited liability company (“Lead

Stories”) has a contract with Facebook, Inc., a Delaware corporation (“Facebook”)

to regularly transmit fact-checking stories over the Internet to Facebook. Facebook

may in turn use those stories to place covers over its users’ Facebook webpages,

warning about the veracity of the users’ posts on those webpages. Some of these

stories have been about Candace Owens, in her individual capacity, and Candace

Owens, LLC, a Delaware limited liability company (collectively, “Plaintiffs”), and

warning covers have been placed over their Facebook webpages. Such warning

covers appear on Facebook webpages worldwide, including those seen in Delaware.

Plaintiffs assert a variety of tort claims, addressed later in this Opinion, against Lead

Stories for injury allegedly arising out of these facts.

On October 18, 2020, Plaintiffs filed a Complaint against, inter alia,

Defendant Lead Stories. On December 18, 2020, Lead Stories filed a Motion to

Dismiss the Complaint as against Lead Stories under Delaware Superior Court Civil

5
Rule 12(b)(2) for lack of personal jurisdiction over Lead Stories. On February 24,

2021, I heard oral argument on this Motion. This is my decision on that Motion.

SUMMARY

Plaintiffs, on the one hand, tell me that the foregoing facts are sufficient in

and of themselves to give me jurisdiction over Lead Stories. Lead Stories, on the

other hand, essentially argues that Plaintiffs’ argument cannot withstand the

constitutional rigors of personal jurisdiction analysis. Lead Stories tells me that it

has no presence in Delaware for purposes of general (or “all purpose”) jurisdiction,

and that strict “but for” causation by Lead Stories of Plaintiffs’ alleged injury within

Delaware is required to confer specific (or “case limited”) jurisdiction. In my view,

there is a more nuanced, middle ground between these two approaches. In that

middle ground, questions of personal jurisdiction are best resolved by a common

sense, fact-driven analysis.

Although the development of the law, including Delaware law, regarding the

permissible reach of personal jurisdiction based on the use of the Internet is in its

infancy, the standard I adopt is well articulated as follows:

[T]he likelihood that personal jurisdiction can be constitutionally
exercised is directly proportionate to the nature and quality of
commercial activity that an entity conducts over the Internet.3

3
This standard was articulated by the Court in Zippo Manufacturing Co. v. Zippo Dot Com, Inc.,
952 F. Supp. 1119, 1124 (W.D. Pa. 1997) (citations omitted); see discussion, post.

6
 Using this standard, I have examined the level of interactivity and the

commercial nature of the exchange of information that occurred on the Facebook

website, using the Lead Stories information, to determine the exercise of personal

jurisdiction. I have determined that the nature and quality of this commercial activity

warrants that I can constitutionally exercise personal jurisdiction over Lead Stories.

In addition to this standard, the lodestar for me in the exercise of personal

jurisdiction is whether two values are upheld: treating Lead Stories fairly, and

protecting “interstate federalism;” i.e., preventing a State with little legitimate

interest in a case from encroaching on a State more affected by the controversy.4 In

my view, Lead Stories had, or should have had, fair warning that its fact-checking

stories, as used by Facebook, might subject it to jurisdiction in Delaware. 5

Moreover, in my view, Delaware has a greater interest than Colorado in the outcome

of this case.6 A denial of jurisdiction would lead to an unfair and inefficient result,

because it would require Plaintiffs to pursue multiple causes of actions in different

jurisdictions, with the possibility of inconsistent results and the certainty of increased

costs.

Finally, Delaware courts have consistently held that our long-arm statute is to

4
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-298 (1980).
5
See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).
6
See Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., 137 S. Ct. 1773
(2017).
7
be construed broadly to confer personal jurisdiction to the maximum extent possible

under the due process clause.7

ANALYSIS

Standard of Review

Pursuant to Delaware Superior Court Civil Rule 12(b)(2), Plaintiffs bear the

burden of establishing that I have personal jurisdiction over Lead Stories.8 Personal

jurisdiction over a nonresident defendant is proper where: (1) Delaware’s long-arm

statute applies; and (2) the Court’s exercise of jurisdiction does not violate

constitutional due process.9 Plaintiffs must make a specific showing that Delaware

maintains jurisdiction under its long-arm statute.10

Pursuant to Delaware’s long-arm statute, I may exercise general or specific

personal jurisdiction over a non-resident defendant when the party maintains the

requisite minimum contacts with Delaware enumerated in the statute.11 General

jurisdiction requires a plaintiff to show that the “defendant regularly and

continuously conducted business within Delaware.” 12 For specific jurisdiction,

7
Daily Underwriters of America v. Maryland Auto. Ins. Fund, 2008 WL 3485807, at *3 (Del.
Super. July 31, 2008); Hercules Inc. v. Leu Trust & Banking Ltd., 611 A.2d 476, 480 (Del. 1992)
(citing LaNuova D & B, S.p.A. v. Bowe Co., Inc., 513 A.2d 764, 768 (Del. 1986) (“[S]ection
3104(c) has been broadly construed to confer jurisdiction to the maximum extent possible under
the due process clause.”)).
8
Schweitzer v. LCR Capital Partners, LLC, 2020 WL 1131716, at *5 (Del. Super. Mar. 9, 2020).
9
LaNuova D & B, S.p.A. v. Bowe Co., Inc., 513 A.2d 764, 768 (Del. 1986).
10
Greenly v. Davis, 486 A.2d 669, 670 (Del. 1984).
11
Clayton v. Farb, 1998 WL 283468, at *1 (Del. Super. Apr. 23, 1998).
12
Tell v. Roman Catholic Bishops of Diocese, 2010 WL 1691199, at *8 (Del. Super. Apr. 26, 2010).
8
plaintiff is required to make “a showing that the cause of action arises from conduct

occurring within the state.”13

If there is a statutory basis to exercise jurisdiction, this Court must then

consider whether such an exercise is consistent with the requirements of due process.14

To satisfy due process, Plaintiffs must show “minimum contacts” exist between Lead

Stories and Delaware such that the exercise of jurisdiction is consistent with

“traditional notions of fair play and substantial justice.”15 These “minimum contacts”

must be rooted in an “act by which the defendant purposefully avails itself of the

privilege of conducting activities within the forum State, thus invoking the benefits

and protections of its laws.” 16 Thus, a defendant must purposefully establish

minimum contacts with the forum state such that the defendant could reasonably

“anticipate being haled into court” there.17

GENERAL PERSONAL JURISDICTION
General (or all purpose) jurisdiction is based on a nonresident defendant’s

persistent, continuous, and substantial course of conduct through which the

13
Id.; Rotblut, 2016 WL 5539884, at *5.
14
Rotblut, 2016 WL 5539884, at *4.
15
World-Wide Volkswagen Corp., 444 U.S. at 292 (citing Int’l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)); Ciabattoni v. Teamsters Local 326, 2016 WL 4442277, at *4 (Del. Super. Aug.
22, 2016).
16
Asahi Metal Indus. Co., Ltd. v. Super. Ct. of California, Solano Cty., 480 U.S. 102, 109 (1987)
(quoting Burger King Corp., 471 U.S. at 475).
17
Burger King Corp., 471 U.S. at 474.
9
nonresident creates a general presence in Delaware.18 To subject Lead Stories to

general jurisdiction pursuant to 10 Del. C. §3104(c)(4), Plaintiffs must allege at

least one of three things: (1) Lead Stories regularly conducts or solicits business in

Delaware; (2) Lead Stories engages in any other persistent course of conduct in

Delaware; or (3) Lead Stories derives substantial revenues from its services used in

Delaware.19 It is Plaintiffs’ burden to show Lead Stories’ conduct falls within the

reach of 10 Del. C. §3104(c)(4).20

Regularly Conduct or Solicit Business in Delaware

Plaintiffs argue that “Lead Stories regularly contracts to supply fact-checking

services to Facebook, which operates extensively in [Delaware].”21 However, that

allegation goes to the contacts of Facebook with Delaware, not the contacts of Lead

Stories with Delaware. Lead Stories’ employees, office and other contacts are all in

Colorado. This Court has held that mere maintenance of a website or webpage over

the Internet accessible to anyone, including Delawareans, whether by Facebook or

Lead Stories, is insufficient to confer general jurisdiction.22 Thus, Lead Stories is

not subject to general jurisdiction under this prong of 10 Del. C. §3104(c)(4).

Engage in Any Other Persistent Course of Conduct in Delaware

18
Herman v. BRP, Inc., 2015 WL 1733805, at *4 (Del. Super. Apr. 13, 2015).
19
See 10 Del. C. § 3104(c)(4); LaNuova D&B, S.p.A., 513 A.2d at 767–68.
20
Schweitzer, 2020 WL 1131716, at *5.
21
Compl. ¶ 44; Plaintiffs’ First Amended Complaint (Transaction ID 6657138) ¶ 46 [hereinafter
Pls. Am. Compl.].
22
Rotblut, 2016 WL 5539884, at *6.
10
 Plaintiffs argue that because “Lead Stories regularly contracts to supply fact-

checking services to Facebook which operates extensively in [Delaware]” that “Lead

Stories regularly engages in a persistent course of conduct in Delaware.” 23 This

argument fails for two reasons. First, the conduct alleged is that of Facebook, not

Lead Stories. Plaintiffs suggest that because Lead Stories contracts with Facebook

to supply fact-checking services to Facebook, Lead Stories itself therefore engages

in a persistent course of conduct in Delaware. But, as discussed above, mere

maintenance of a website or webpage over the Internet accessible to anyone,

including Delawareans, whether by Facebook or Lead Stories, is insufficient to

confer general jurisdiction. 24 Second, setting aside Lead Stories’ contractual

relationship with Facebook, Plaintiffs fail to identify any other persistent course of

conduct by Lead Stories in Delaware.

Moreover, Lead Stories is not registered, licensed, or otherwise authorized to

do business in Delaware.25 Nor does Lead Stories maintain an office, interests, real

property, or assets in Delaware.26 Lead Stories has never paid any taxes to the State

of Delaware, and it does not maintain any ongoing material contractual relationships

with entities or individuals in Delaware.27

23
Compl. ¶ 44; Pls. Am. Compl. ¶ 46.
24
Rotblut, 2016 WL 5539884, at *6.
25
Duke Decl. ¶ 10.
26
Id. at ¶¶ 11–12. Plaintiffs make no allegations to support jurisdiction under §§ 3104 (c)(5) or
(c)(6).
27
Id. at ¶ 12.
11
 Thus, Lead Stories is not subject to general jurisdiction under this prong of 10

Del. C. §3104(c)(4).

Derive Substantial Revenue for Its Services Used in Delaware

Plaintiffs allege that Lead Stories “derives substantial revenue from Delaware

by providing fact-checking services to Delaware through its website and through

Facebook.”28 This Court has rejected the argument that an “employee’s receipt of a

salary based on services rendered to a company that allegedly derives substantial

revenue from its activities in Delaware is a sufficient contact under §3104(c)(4) to

confer personal jurisdiction over [the employee].”29 Moreover, receipt of a salary,

“part of which might reflect time spent working to generate fees related to services

an employer provided in Delaware, would [not] satisfy the Due Process Clause’s

minimum contacts requirement.” 30 Even if Lead Stories receives substantial

revenue from its agreement with Facebook, Plaintiffs fail to allege that Lead Stories

derived substantial revenue from activities in Delaware.

Thus, Lead Stories is not subject to general jurisdiction under this prong of 10

Del. C. §3104(c)(4).

To summarize the elements of general personal jurisdiction: Plaintiffs do not

28
Compl. ¶ 44; Pls. Am. Compl. ¶ 46.
29
Rotblut, 2016 WL 5539884, at *7.
30
Hartsel v. Vanguard Grp., Inc., 2011 WL 2421003, at *7 (Del. Ch. June 15, 2011), aff’d, 38
A.3d 1254 (Del. 2012).
12
sufficiently allege that Lead Stories (1) regularly conducts or solicits business in

Delaware, (2) engages in any other persistent course of conduct in Delaware, or (3)

derives substantial revenue from services or things used or consumed in Delaware.31

Accordingly, Plaintiffs are unable to persuade me that I may properly exercise

general personal jurisdiction over Lead Stories.32

SPECIFIC PERSONAL JURISDICTION

To subject Lead Stories to specific (or case-limited) personal jurisdiction

under the Delaware long-arm statute, Plaintiffs must allege that Lead Stories (1)

transacts business or performs work or services in Delaware 33 ; (2) contracts to

provide “services or things” in Delaware34; or (3) causes tortious injury in Delaware

by an act or omission in Delaware.35 Although Plaintiffs and Lead Stories present

arguments for and against the proposition that Lead Stories transacts business or

performs work or services in Delaware, and contracts to provide “services or things”

in Delaware, under 10 Del. C. §3104(c)(1) and 10 Del. C. §3104(c)(2), respectively,

I need not address those arguments. The Delaware long-arm statute is in the

disjunctive, so any one of the three bases for specific personal jurisdiction will

31
Duke Decl. ¶ 11.
32
See Aeroglobal Capital Management, LLC v. Cirrus Industries, Inc., 871 A. 2d 428, 438 (Del.
2005).
33
10 Del. C. §3104(c)(1).
34
10 Del. C. §3104(c)(2).
35
10 Del. C. §3104(c)(3); Tell, 2010 WL 1691199, at *8 (noting that the cause of action must arise
from conduct within Delaware).

13
suffice for jurisdiction to attach. I also decide cases on the narrowest possible

grounds. I find that Plaintiffs sufficiently allege that Lead Stories caused tortious

injury in Delaware by acts or omissions in Delaware under 10 Del. C. §3104(c)(3),

which in and of itself provides a sufficient basis for personal jurisdiction.

Personal Jurisdiction Under 10 Del. C. §3104(c)(3)

10 Del. C. §3104(c)(3) requires Plaintiffs to allege that Lead Stories caused a

tortious injury in Delaware resulting from an act or omission by Lead Stories in

Delaware.36 A naked allegation that a tortious injury occurred in Delaware, without

more, does not satisfy 10 Del. C. §3104(c)(3). 37 Delaware law further requires

Plaintiffs to allege that the injury was caused by an act or omission which was

committed in Delaware.38 “The dual reference to ‘within the state’ indicates that the

draftsmen intended that there be two separate events, each within the State.” 39

“[P]laintiff cannot be the only link between the defendant and the forum. Rather,

it is the defendant’s conduct that must form the necessary connection with the forum

State that is the basis for its jurisdiction over him.”40

When considering whether a defendant acted within Delaware, this Court has

required “something more” than “the knowledge that [a] website could be viewed or

36
See Hartsel, 2011 WL 2421003, at *14.
37
Rotblut, 2016 WL 5539884, at *6.
38
Id.; Tell, 2010 WL 1691199, at *14 (declining to exercise personal jurisdiction under § 3104(c)(3)
where plaintiff alleged no act or omission of the defendants occurred in Delaware).
39
Ramada Inns, Inc. v. Drinkhall, 1984 WL 247023, at *2 (Del. Super. May 17, 1984).
40
Milliken v. Meyer, 311 U.S. 457, 463 (1940).
14
that their product could be used in [Delaware].”41 In Rotblut, an individual author

who resided in Illinois, and subsequently Washington, D.C., wrote a blog which a

Delaware subsidiary corporation posted on a website owned and hosted by its parent

holding company, which was incorporated under the laws of the United Kingdom

with a principal place of business in London, England. Plaintiffs sued the author,

the subsidiary, and the holding company for defamation. The Court recognized that

it had jurisdiction over the Delaware subsidiary, but held that it had no specific

personal jurisdiction over the author or the parent holding company under 10 Del. C.

§3104(c)(3) and granted their motions to dismiss. Assuming arguendo that there

was a tortious injury in Delaware, the Court found that the mere fact that the parent

holding company owned the website, on which it hosted postings by its subsidiary,

was not enough under 10 Del. C. §3104(c)(3), and thus considered whether the parent

holding company “committed an act or omission” in Delaware. The Court found

that the parent holding company’s awareness that its website might be viewed in

Delaware or viewed by Delaware residents is not “an act or omission” in Delaware

under 10 Del. C. §3104(c)(3). Similarly, the Court held that, since the individual

author had not been in Delaware, or had any other presence in or contact with

Delaware when the story was written, he had not committed “an act or omission” in

Delaware under 10 Del. C. §3104(c)(3).

41
Rotblut, 2016 WL 5539884, at *5.

15
 This case is distinguishable from Rotblut. Lead Stories contracted with

Facebook, a Delaware corporation, to provide fact-checking services and stories to

Facebook. Using those services and stories, Facebook placed warnings on the

Facebook page of Plaintiffs, one of whom is a Delaware limited liability company,

including the page as it appeared to Delaware customers and which, as alleged in the

Complaint, drove Plaintiffs’ customers away from their Facebook page, negatively

affected the business they generated from their Facebook page, and diverted their

customers away from their Facebook page to the website of Lead Stories – a

competitor – and its advertisers. The contract with which Lead Stories allegedly

tortiously interfered is between a Delaware corporation (Facebook) and a Delaware

limited liability company (Candace Owens, LLC). Plaintiffs allege that, because of

Lead Stories’ information, Facebook determined that Plaintiffs were in breach of their

contractual obligations to Facebook, thus triggering Facebook’s adverse actions

against Plaintiffs, including restricting their ability to advertise, suspending their

account, and demonetizing their relationship.

Lead Stories, although its fact-checking stories about Plaintiffs may have been

written in Colorado, had a contract with Facebook, in the regular course of business,

to use those stories as warnings to cover Plaintiffs’ Facebook account. Lead Stories

knew or should have known that its stories could be used, among other places, on

the Facebook page of a Delaware LLC as it appeared in Delaware.

16
 The federal courts in the Third Circuit have taken an expansive view of the

Delaware and Pennsylvania long-arm statutes, in the context of the Internet, that

favors specific personal jurisdiction. In Zippo Manufacturing Co. v. Zippo Dot Com,

Inc.,42 the manufacturer of “Zippo” tobacco lighters brought federal and state law

claims against a computer news website which used domain names using the word

“zippo.” The Court held that, by zippo offering its website news service to

Pennsylvanians, (1) zippo purposefully availed itself of doing business in

Pennsylvania and was subject to personal jurisdiction there, (2) Zippo’s claims arose

out of zippo’s Pennsylvania-related conduct, and (3) the exercise of personal

jurisdiction over zippo in Pennsylvania was reasonable. The Court stated:

[T]he likelihood that personal jurisdiction can be constitutionally
exercised is directly proportionate to the nature and quality of
commercial activity that an entity conducts over the Internet. This
sliding scale is consistent with well developed personal jurisdiction
principles. At one end of the spectrum are situations where a defendant
clearly does business over the Internet. If the defendant enters into
contracts with residents of a foreign jurisdiction that involve the
knowing and repeated transmission of computer files over the Internet,
personal jurisdiction is proper. At the opposite end are situations where
a defendant has simply posted information on an Internet Web site
which is accessible to users in foreign jurisdictions. A passive Web site
that does little more than make information available to those who are
interested in it is not grounds for the exercise [sic] personal jurisdiction.
The middle ground is occupied by interactive Web sites where a user
can exchange information with the host computer. In these cases, the
exercise of jurisdiction is determined by examining the level of
interactivity and commercial nature of the exchange of information that

42
952 F. Supp. 1119 (W.D. Pa. 1997).
17
 occurs on the Web site.43

This case is not at either extreme, but in the middle. Lead Stories did not enter

into discrete contracts with Delawareans for its fact-checking services and stories.

Nor did it simply post its fact-checking services and stories on a passive website that

was available only to those who were interested in them. Rather, Lead Stories’ fact-

checking services and stories were posted on Facebook, an interactive website where

users could take any number of actions adverse to Plaintiffs, including leaving

Plaintiffs’ Facebook page, switching to the website of Lead Stories – a competitor –

and its advertisers, and not spending money on Plaintiffs’ website. In addition,

Facebook itself could take actions adverse to Plaintiffs, including restricting their

ability to advertise, suspending their account, and demonetizing their relationship.

In such a case, when I examine the “level of interactivity and commercial nature of

the exchange of information that occurs on the website,” I am persuaded that the

exercise of specific personal jurisdiction is appropriate.

In Kloth v. Southern Christian University,44 a Delaware student sued a private

Alabama university’s “distance learning” program (i.e., on-line school) for breach

of an implied contract to provide her with a complete education and discrimination

against her because she was not a Christian. Only two Delaware students (including

43
Id., at 1124 (citations omitted).
44
494 F. Supp. 2d 273 (D. Del. 2007), aff’d, 320 F. App’x 113 (3d Cir. 2008).
18
plaintiff) used the program. The Court found no basis for general personal

jurisdiction over the university under 10 Del. C. §3104(c)(4) but stated that

specific personal jurisdiction would be proper when “a defendant’s website is

specifically designed to commercially interact with the residents of [Delaware].”45

Finding that the university’s passive website was not so designed, the Court declined

to exercise personal jurisdiction and granted the defendant’s motion to dismiss.

However, in this case, Lead Stories’ website, as used by Facebook, was very much

designed to interact with Delaware residents, among others, although their number

cannot be precisely ascertained.

CONSTITUTIONAL DUE PROCESS

The Fourteenth Amendment's Due Process Clause limits my power to exercise

jurisdiction over Lead Stories. The seminal decision in this area remains

International Shoe Co. v. Washington.46 There, the United States Supreme Court

held that a tribunal's authority depends on the defendant's having such “contacts”

with the forum State that “the maintenance of the suit” is “reasonable” and “does not

offend traditional notions of fair play and substantial justice.” 47 In applying that

formulation, the United States Supreme Court has long focused on the nature and

45
Id., at 279.
46
326 U.S. 310, 316 (1945).
47
Id., at 316–317.
19
extent of “the defendant's relationship to the forum State.”48 That focus led to the

recognition of the two types of personal jurisdiction: general and specific

jurisdiction. A state court may exercise general jurisdiction only when a defendant

is “essentially at home” in the State.49 Specific jurisdiction covers defendants less

intimately connected with a State, but only as to a narrower class of claims. To be

subject to that kind of jurisdiction, the defendant must take “some act by which [it]

purposefully avails itself of the privilege of conducting activities within the forum

State.”50 And the plaintiff's claims “must arise out of or relate to the defendant's

contacts” with the forum state.51

Enter Ford Motor Company v. Montana Eighth Judicial District Court 52

(“Ford Motor”). In that case, Ford, a nonresident of the forum state, had

manufactured and sold automobiles in states other than the forum states, but the

current owners of the automobiles sued Ford for death and injuries sustained when

the automobiles malfunctioned in the forum states. Ford heavily advertised, and

conducted sales and service of, other automobiles in the forum states. Ford appealed

dismissal of its motion to dismiss for lack of personal jurisdiction in the lower state

courts. The Supreme Court affirmed the lower courts and upheld specific personal

48
Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., 137 S.Ct. 1773, 1779
(2017).
49
Goodyear Dunlop Tires Operations, S. A v. Brown, 564 U.S 915, 919 (2011).
50
Hanson v. Denckla, 357 U.S. 235, 253 (1958).
51
Bristol-Myers, 137 S.Ct., at 1786.
52
141 S. Ct. 1017 (2021).
20
jurisdiction.

Ford did not contest that it does business in the forum states and that it actively

seeks to serve the market for automobiles and related products in those states. Or to

put that concession in more doctrinal terms, Ford agreed that it “purposefully

avail[ed] itself of the privilege of conducting activities” in those states. 53 Ford

claimed instead that those activities did not sufficiently connect to the suits, even

though the resident plaintiffs alleged that Ford automobiles malfunctioned in the

forum states. In Ford's view, the needed link must be causal in nature: jurisdiction

attaches “only if the defendant's forum conduct gave rise to the plaintiff ’s claims.”

Writing for a majority of five, Justice Kagan, who in 2017 wrote a vigorous

dissent in Bristol-Meyers Squibb Co. accusing the majority in that case of unduly

curbing the exercise of specific jurisdiction, expanded the scope of specific

jurisdiction. She concluded that the Bristol-Meyers Squibb Co. test that the

plaintiff’s claims must “arise out of or relate to the defendant's contacts” with the

forum state (emphasis supplied), since it is disjunctive, creates two individual bases

for specific personal jurisdiction – a claim which “arises out of” or a claim which

“relates to” – defendant’s contacts with the forum state, and either will suffice to

exercise specific personal jurisdiction. The Court found that the plaintiffs’ claims

both arose out of, and related to, Ford’s extensive contacts with the forum states, and

53
Hanson, 357 U.S. 235, 253 (1958).
21
upheld the lower courts’ exercise of specific personal jurisdiction, notwithstanding

the fact that the automobiles had been neither manufactured nor sold in the forum

states.

Justice Alito, concurring in the result, decried the majority’s creation of two

tests, and asserts that there is only one: the classic “minimum contacts’ test of

International Shoe.

Justices Gorsuch and Thomas, also concurring in the result, went one step

further, and called for a return to the law of personal jurisdiction as it existed before

International Shoe.

Ford Motor, unlike this case, does not involve defendants’ contacts on the

Internet. However, I am an aficionado of duck decoys, so I note with particular

interest the discussion by Justice Gorsuch of a hypothetical that was asked at oral

argument54 and mentioned by the majority in a footnote:

The majority imagines a retiree in Maine who starts a one-man
business, carving and selling wooden duck decoys. In time, the man
sells a defective decoy over the Internet to a purchaser in another State
who is injured. We aren't told how. (Was the decoy coated in lead
paint?) But put that aside. The majority says this hypothetical supplies
a useful study in contrast with our cases. On the majority's telling,
Ford's “continuous” contacts with Montana and Minnesota are enough
to establish an “affiliation” with those States; by comparison, the decoy
seller's contacts may be too “isolated” and “sporadic” to entitle an
injured buyer to sue in his home State. But if this comparison highlights
anything, it is only the litigation sure to follow. For between the poles
of “continuous” and “isolated” contacts lie a virtually infinite number

54
Tr. of Oral Arg. 39.
22
 of “affiliations” waiting to be explored. And when it comes to that vast
terrain, the majority supplies no meaningful guidance about what kind
or how much of an “affiliation” will suffice. Nor, once more, does the
majority tell us whether its new affiliation test supplants or merely
supplements the old causation inquiry.

But, today, even an individual retiree carving wooden decoys in
Maine can “purposefully avail” himself of the chance to do business
across the continent after drawing online orders to his e-Bay “store”
thanks to Internet advertising with global reach. A test once aimed at
keeping corporations honest about their out-of-state operations now
seemingly risks hauling individuals to jurisdictions where they have
never set foot.

Perhaps this is the real reason why the majority introduces us to
the hypothetical decoy salesman. Yes, he arguably availed himself of a
new market. Yes, the plaintiff ’s injuries arguably arose from (or were
caused by) the product he sold there. Yes, International Shoe’s old
causation test would seemingly allow for personal jurisdiction. But
maybe the majority resists that conclusion because the old test no longer
seems as reliable a proxy for determining corporate presence as it once
did. Maybe that's the intuition lying behind the majority's introduction
of its new “affiliation” rule and its comparison of the Maine retiree's
“sporadic” and “isolated” sales in the plaintiff ’s State and Ford's deep
“relationships” and “connections” with Montana and Minnesota.

Putting Justice Gorsuch’s jurisprudential concerns aside, in this case Plaintiffs”

claims clearly “relate to” Lead Stories’ contacts with Delaware via Facebook on

Plaintiffs’ webpage. These contacts were neither isolated nor sporadic, but

continuous. In my view, Ford Motor mitigates in favor of specific personal

jurisdiction over Lead Stories. The requirements of the Due Process Clause of the

Fourteenth Amendment to the United States Constitution are satisfied.

23
 CONCLUSION

Plaintiffs have not provided me with a sufficient basis on which I may exercise

general personal jurisdiction over Lead Stories under Delaware law. Plaintiffs have,

however, provided me with a sufficient basis on which I may exercise specific

personal jurisdiction over Lead Stories under Delaware law. The nature and quality

of the commercial activity that Lead Stories conducted over the Internet mitigate in

favor of specific personal jurisdiction. Although Lead Stories did not directly

transact business or perform work or services in Delaware, or contract to provide

“services or things” in Delaware, it contracted with Facebook to supply fact-

checking services and stories which were disseminated by Facebook in

Delaware in such a manner as to allegedly cause tortious injury in Delaware, which

could reasonably have been foreseen by Lead Stories. Moreover, I find that the

exercise of specific personal jurisdiction over Lead Stories comports with

constitutional due process requirements under Ford Motor Company. Accordingly,

I exercise specific personal jurisdiction over Lead Stories.

For the reasons stated above, I DENY Defendant Lead Stories’ Motion to

Dismiss for Lack of Personal Jurisdiction under Delaware Civil Rule 12(b)(2).

IT IS SO ORDERED.

I turn now to both Defendants’ Motions to Dismiss for failure to plead

cognizable claims.

24
 FAILURE TO STATE A CLAIM

A bedrock principle of our law is that the United States Constitution protects

freedom of speech.55 As Justice Brett Kavanaugh noted, while sitting as a D.C.

Circuit Court judge, the United States Supreme Court has guided courts to

“expeditiously weed out unmeritorious defamation suits” because they can threaten

freedom of speech. 56 Early dismissal of defamation lawsuits for failure of the

complaint to state a claim on which relief can be granted “not only protects against

the costs of meritless litigation, but provides assurance to those exercising their First

Amendment rights that doing so will not needlessly become prohibitively

expensive.”57 The same logic should apply to other tort lawsuits whose complaints

are based on defendants’ injurious false statements, where First Amendment

limitations apply.58

BACKGROUND

As discussed earlier in this Opinion, this suit arises out of Facebook’s third-

party partners’ fact-checking articles regarding Plaintiffs’ Facebook posts. 59

55
U.S. Const. amend. I.
56
Kahl v. Bureau of Nat'l Affairs, Inc., 856 F.3d 106, 109 (D.C. Cir. 2017) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); New York Times Co.
v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).
57
Fairbanks v. Roller, 314 F. Supp. 3d 85, 89 (D.D.C. 2018) (citation omitted).
58
Blatty v. New York Times Co., 728 P.2d 1177, 1184 (Cal. 1986) (en banc) (explaining why the
First Amendment should apply to any claim whose gravamen is an injurious falsehood
statement).
59
Pls. Am. Comp. ¶¶ 1–2.
25
Defendant Lead Stories and Defendant Gannett Satellite Information Network, LLC,

a Delaware limited liability company d/b/a USA TODAY (“Gannett” or “USA

TODAY”) (Gannett and USA TODAY, collectively, “Defendants”) have

contractual relationships with Facebook, which pays its third-party fact-checking

partners, including Defendants, to publish “fact-check” articles examining whether

certain Facebook posts contain untruthful information.60

On October 18, 2020, Plaintiffs filed a Complaint against both Defendants.

On May 4, 2021, Plaintiffs filed a Motion for Leave to File and Serve the First

Amended Complaint (the “Amended Complaint”), and, on June 21, 2021 I granted

Plaintiffs’ Motion. In the Amended Complaint, Plaintiffs assert three tort claims

against both Defendants: (1) intentional interference with contractual relations, (2)

tortious interference with prospective business relations, and (3) unfair competition

at common law. 61 Plaintiffs assert two additional tort claims solely against

Defendant Lead Stories: (4) defamation with actual malice, and (5) defamation with

common law malice.62

On December 18, 2020, both Defendants filed a Motion to Dismiss the

Complaint under Delaware Superior Court Civil Rule 12(b)(6) for failure to state a

60
Id. ¶¶ 33, 34, 40, 41.
61
Pls. Am. Compl., ¶¶ 141–64.
62
Pls. Am. Compl., ¶¶ 165–89.
26
claim. On April 28, 2021, I heard oral argument on these Motions. This is my

decision on those Motions.

Plaintiff Candace Owens is a conservative political commentator and an

active user of Facebook and other social media, including Twitter.63 She is a public

figure.64 Plaintiff Candace Owens, LLC is a Delaware limited liability company

primarily controlled by Candace Owens to, among other things, maintain Candace

Owens’ Facebook page.65 Candace Owens writes the content that she posts on her

social media pages operated by Candace Owens, LLC.66

On March 29, 2020, Candace Owens published a post on her Facebook page

claiming that the methods U.S. governmental officials used for counting COVID-19

deaths overstated the peril and the scope of the COVID-19 pandemic (the “First

Facebook Post”).67 To support her claim, she linked and referenced Dr. John Lee’s

article in the First Facebook Post.68 Dr. Lee is a consultant pathologist with the

United Kingdom’s National Health Service and wrote an article showing his concern

related to the U.K. methods of counting the COVID-19 death toll.69

63
Id. ¶¶ 5–13.
64
See id. ¶¶ 6, 13 (describing Candace Owens as a “popular” commentator and “a prominent
social media star”).
65
Id. ¶¶ 21–22.
66
Id. ¶ 25.
67
Id. ¶ 55.
68
Id. ¶ 57.
69
Id. ¶ 58.
27
 On April 1, 2020, Lead Stories published an article fact-checking Owens’

First Facebook Post (the “Lead Stories Article”). 70 The Lead Stories Article

determined that Owens’ First Facebook Post was false and labeled Owens’ First

Facebook Post with the terms “Hoax Alert” and “False.”71 Lead Stories publication

of its article caused Facebook to place a false information warning label on the First

Facebook Post.72

On April 28, 2020, Candace Owens published a post on her Facebook page

questioning the relationship between the counting of COVID-19 deaths and flu

deaths in early 2020 (the “Second Facebook Post”).73 In the Second Facebook Post,

she cited CDC reports and argued in a sarcastic manner that the number of flu deaths

had decreased drastically in early 2020.74

On April 30, 2020, USA TODAY published a fact-check article analyzing

data from the CDC and concluding that Owens’ Second Facebook Post carried false

information (the “USA TODAY Article”).75 As a result of that article, Facebook

displayed a false information warning label on the Second Facebook Post.

70
Id. ¶ 72.
71
Id. ¶ 77.
72
Id. ¶ 83.
73
Id. ¶ 63.
74
Id. ¶¶ 63–64.
75
Id. ¶ 79, Ex. E.
28
 Plaintiffs attached as exhibits to their Amended Complaint the First Facebook

Post, the Second Facebook Post, Dr. Lee’s article, the Lead Stories Article, and the

USA TODAY Article.76

During relevant times, Plaintiffs and Facebook had an advertising contract.77

Under this contract, Plaintiffs paid Facebook, and, in return, Plaintiffs were entitled

to run advertisements on their Facebook page.78 On June 24, 2020, Facebook sent

an email to Plaintiffs, writing that “because [Plaintiffs’ Facebook page] ha[d]

continually shared content rated false by third-party fact-checkers,” Facebook

decided to suspend Plaintiffs from running advertisements on Facebook.79

Plaintiffs assert in the Amended Complaint that the Lead Stories Article

contains several false and defamatory statements that were made with actual malice,

constituting the tort of defamation.80

Plaintiffs further assert in the Amended Complaint that USA TODAY

maliciously decided to publish the USA TODAY Article which purported to fact-

check Candace Owens’ sarcastic hyperbole in the Second Facebook Post, even

though sarcastic hyperbole cannot be fact-checked because it does not deliver any

statement of fact.81 Plaintiffs contend that both Defendants knew that, by improperly

76
Id. Ex. A–E.
77
Id. ¶¶ 100–01.
78
Id.
79
Id. ¶ 108.
80
Id. ¶¶ 125–40, 165–89.
81
Id. ¶¶ 64–70.
29
and wrongfully publishing their articles about Plaintiffs’ Facebook posts, Facebook

would place warning labels on the posts and would use them to justify banning

Candace Owens, LLC from deriving advertising revenue from the Facebook

platform. 82 Plaintiffs claim that, as a result, this conduct by both Defendants

constitutes tortious interference with contractual relations.83

Plaintiffs further assert in the Amended Complaint that Plaintiffs had

recurring, prospective business opportunities with Facebook, where Plaintiffs would

pay Facebook to run advertisements on Owens’ Facebook page.84 Also, Plaintiffs

had prospective business opportunities with Facebook users who could buy Owens’

book “Blackout.”85 Plaintiffs argue that Plaintiffs lost these opportunities because

of Defendants’ wrongful, improper publication of their articles about Plaintiffs’

Facebook posts, which led Facebook to place warning labels on the posts and to

suspend Plaintiffs from running advertisements, including advertisements about her

book “Blackout,” on Plaintiffs’ Facebook page.86 Plaintiffs claim that Defendants’

conduct constitutes tortious interference with prospective business relations.87

Lastly, Plaintiffs contend that, by wrongfully publishing the articles,

Defendants interfered with Plaintiffs’ reasonable expectation to enter into and

82
Id. ¶¶ 141–49.
83
Id.
84
Id. ¶ 157.
85
Id. ¶ 150–56.
86
Id.
87
Id. ¶ 150–57.
30
continue a valid business relationship with Facebook, which Plaintiffs claim

establishes unfair competition at common law.88

ANALYSIS

Standard of Review

On a Motion to Dismiss for failure to state a claim upon which relief can be

granted under Delaware Superior Court Civil Rule 12(b)(6),89 the pleading standard

is “reasonable conceivability.”90 Under the reasonable conceivability standard, all

well-pleaded allegations in the complaint must be accepted as true. 91 Even vague

allegations are considered well pleaded if they give the opposing party notice of a

claim.92 The court must draw all reasonable inferences in favor of the non moving

party.93

However, “[a] claim may be dismissed if allegations in the complaint or in the

exhibits incorporated into the complaint effectively negate the claim as a matter of

law.”94 Moreover, the court will not “accept conclusory allegations unsupported by

88
Id. ¶ 158–64.
89
Super. Ct. Civ. R. 12(b)(6).
90
K.C. Co., Inc. v. WRK Constr., Inc., 2019 WL 338671, at *2 (Del. Super. Ct. Jan. 24, 2019).
(citing Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings, LLC, 27 A.3d 531, 537
(Del. 2011)).
91
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
92
In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006) (quoting Savor,
Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)).
93
Id.
94
Tigani v. C.I.P. Associates, LLC, 228 A.3d 409 (Del. 2020) (quoting Malpiede v. Townson,
780 A.2d 1075, 1082 (Del. 2001)).
31
specific facts,” nor will it “draw unreasonable inferences in favor of the non-moving

party.”95 Dismissal is not appropriate unless the “plaintiff would not be entitled to

recover under any reasonably conceivable set of circumstances susceptible of

proof.”96 The reasonable conceivability standard asks whether there is a possibility

of recovery.97

Defamation with Actual Malice and Defamation with Common Law Malice
(Defendant Lead Stories Only)

Under Delaware law, to state a claim for defamation, a public figure plaintiff

must plead that: (1) the defendant made a defamatory statement; (2) concerning the

plaintiff; (3) the statement was published; and (4) a third party would understand the

character of the communication as defamatory. 98 In addition, the public-figure

plaintiff must plead that (5) the statement is false and (6) that the defendant made

the statement with actual malice—“that is, with knowledge that it was false or with

reckless disregard of whether it was false or not.” 99 There is no liability for

defamation when a statement is determined to be true or substantially true.100 In the

95
Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (citation omitted).
96
Windsor I, LLC v. CWCapital Asset Mgmt. LLC, 238 A.3d 863, 871–72 (Del. 2020) (quoting
In re Gen. Motors, 897 A.2d at 168).
97
Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs, LLC, 27 A.3d 531, 537 (Del.
2011).
98
Agar v. Judy, 151 A.3d 456, 470 (Del. Ch. 2017) (citing Doe v. Cahill, 884 A.2d 451, 463
(Del. 2005) (en banc)).
99
Id. (citing New York Times v. Sullivan, 376 U.S. 254, 280 (1964)).
100
Preston Hollow Capital LLC v. Nuveen LLC, 216 A.3d 1, 9 (Del. Ch. 2019) (citing Riley v.
Moyed, 529 A.2d 248, 253 (Del. 1987)).
32
context of a motion to dismiss a libel suit,101 it is for the court to determine as a

matter of law whether the allegedly defamatory statements are protected expressions

of opinion, and whether statements of fact are susceptible of a defamatory

meaning.102

Plaintiffs allege in the Amended Complaint that the following three

statements made in the Lead Stories Article are defamatory and false and were made

with actual malice:

(1) The [false] claims [about the COVID-19 death counting method]
originated in a post . . . published on Facebook by Candace Owens
on March 29, 2020.

(2) [The First Facebook Post] is being shared to suggest that medical
officials are – in Owens’ words – “trying desperately to get the
numbers to justify this pandemic response.” This comment is an
attempt to downplay the severity of a global infectious disease that
has killed more than 42,000 people as of March 31, 2020.

(3) There are several inaccuracies in [the First Facebook Post].103

I find no facts alleged in the Amended Complaint supporting Plaintiffs’ claim

that statement (1) is defamatory or false. As Lead Stories correctly points out in its

brief, Plaintiffs altered the statement and omitted relevant context.104 The statement

in the original Lead Stories Article, attached to the Amended Complaint as Exhibit

101
Spence v. Funk, 396 A.2d 967, 970 (Del. 1978) (“libel is written defamation.”).
102
Ramunno v. Cawley, 705 A.2d 1029, 1035 (Del. 1998) (en banc) (citing Riley v. Moyed, 529
A.2d 248, 253 (Del. 1987)).
103
Pls. Am. Compl., ¶ 78 (alteration in original).
104
Memorandum of Law in Support of Defendant Lead Stories, LLC’s Motion to Dismiss, at 24
[hereinafter Lead Stories’ Br.].
33
A, merely reads that “[t]he claims originated in a post (archived here) published on

Facebook by Candace Owens on March 29, 2020.”105 In their Amended Complaint,

Plaintiffs admit that Owens is the author of the claims published on Owens’ First

Facebook Post. 106 This statement does not convey any facts that are untrue or

capable of defamatory meaning as it does not injure Owens’ reputation in any

sense.107

I further find no facts alleged in the Amended Complaint supporting

Plaintiffs’ claim that statements (2) and (3) are false under the reasonable

conceivability standard. Although Plaintiffs allege that statements (2) and (3) are

false, these allegations are negated by the Exhibits A, B and C to the Amended

Complaint. 108 Plaintiffs’ claim that statements (2) and (3) are false is based on

Plaintiffs’ assertion that the First Facebook Post is truthful. 109 To support this

assertion, Plaintiffs allege that, in the First Facebook Post, Owens linked and

referenced an article by renowned U.K. pathologist Dr. John Lee that confirms the

105
Pls. Am. Compl., Ex. A.
106
Pls. Am. Compl., ¶ 55.
107
See Images Hair Sols. Med. Ctr. v. Fox News Network, LLC, 2013 WL 6917138, at *3 (Del.
Super. Ct. Dec. 20, 2013) (citing Spence v. Funk, 396 A.2d 967, 967 (Del.1978)) (noting that a
statement is capable of defamatory meaning if the statement tends to “injure the reputation in the
popular sense”).
108
Pls. Am. Compl., ¶ 55, Ex. A, Ex. B, Ex. D; see Tigani v. C.I.P. Associates, LLC, 228 A.3d
409 (Del. 2020) (quoting Malpiede v. Townson, 780 A.2d 1075, 1082 (Del. 2001)) (“[a] claim
may be dismissed if allegations in the complaint or in the exhibits incorporated into the
complaint effectively negate the claim as a matter of law.”).
109
Id. ¶ 56.
34
accuracy of her First Facebook Post’s claim that COVID-19 deaths in the United

States are being overstated.110 Specifically, Plaintiffs state that Dr. Lee explains

“precisely why COVID-19 would be potentially overstated as the cause of death.”111

While acknowledging that Dr. Lee’s article was referencing the United Kingdom’s

method for counting deaths (and not the United States), Plaintiffs assert, without

support, that “the reporting criteria for cause of death are international: thus, the

standards to be followed in the U.K. mirror those in the U.S.”112

However, Dr. Lee’s article, Exhibit B to the Amended Complaint, does not

support these assertions. 113 In his article, Dr. Lee stated that because countries

calculate cause of death differently, “the data on COVID-19 [deaths] differs wildly

from country to country.”114 In fact, Dr. Lee presented that the death rate of COVID-

19 in the United States (1.3 percent) is much lower than the rate in the United

Kingdom (5 percent) because both countries use different methods when calculating

COVID-19 as cause of death.115 Thus, merely because Dr. Lee argued in his article

that the U.K. COVID-19 death recording method may exaggerate COVID-19

deaths,116 it does not mean that he argued that the U.S. method overstates COVID-

110
Id. ¶ 57–58.
111
Id. ¶ 58.
112
Id.
113
Id. Ex. B.
114
Id.
115
Id.
116
Id.
35
19 deaths. If anything, Dr. Lee’s article suggests that reporting criteria for cause of

death are not consistent among countries.117

Plaintiffs also quote statements from two U.S. health officials, Dr. Deborah

Birx and Dr. Ngozi Ezike, in the Amended Complaint to support Plaintiffs’ assertion

that the First Facebook Post is factually accurate.118 However, the statement from

Dr. Birx only shows that (1) countries have different recording methods regarding

COVID-19 deaths, and (2) when a person who has a preexisting condition and

COVID-19 dies, medical authorities in the United States count it as a COVID-19

death.119 Dr. Ezike, another U.S. health official whom Plaintiffs cite in the Amended

Complaint, made a point similar to Dr. Birx’s statement.120

Dr. Birx’s statement does not support Owens’ statements in the First

Facebook Post. In the First Facebook Post, Owens said that “I spent all day today

trying to look up daily death rates for any other diseases. You can’t get it anywhere.

They are reporting ONLY on coronavirus deaths.”121 The quoted statements from

Dr. Birx and Dr. Ezike in the Amended Complaint did not say that medical

authorities in the United States only count COVID-19 deaths and stop counting other

117
Id.
118
Id. ¶¶ 59–60.
119
Id. ¶ 59.
120
See id. ¶ 60 (explaining that when a person with a preexisting condition and COVID-19 dies,
the death will be listed as a COVID-19 death).
121
Id. ¶ 55.
36
causes of deaths.122 Nor did the statements from Dr. Birx and Dr. Ezike say that

when a person with a preexisting condition who is also positive for COVID-19 dies,

only COVID-19 would be listed as the single cause of death on her death

certificate.123

The Lead Stories Article is not inconsistent with either Dr. Birx’ or Dr.

Ezike’s statements.124 Lead Stories did not deny that COVID-19 would be listed on

the death certificate if a person who has a preexisting condition and carries COVID-

19 dies. 125 Instead, Lead Stories pointed out in its article that typically the

preexisting condition will also be listed as a contributory cause on the death

certificate if a person who is positive for COVID-19 dies. 126 The Lead Stories

Article quoted Dr. Sally Aiken’s statement that “if [decedents] are positive for

COVID-19 and have symptoms, COVID-19 is typically being listed on the death

certificate as the cause of death, with their other diseases listed as contributory.”127

Moreover, the Lead Stories Article revealed inaccuracies in Owens’ First

Facebook Post.128 It pointed out a factual contradiction between what Owens wrote

on the First Facebook Post and on her own Tweet that was incorporated into the First

122
See id. ¶¶ 59–60.
123
See id.
124
See id. Ex. D.
125
See id.
126
Id.
127
Id.
128
See id.
37
Facebook Post regarding the number one cause of deaths in the United States.129 On

the First Facebook Post, Owens wrote “[o]besity is the number 1 killer in

America.”130 In her Tweet, which is incorporated into the same Facebook post, she

wrote “[t]he number one killer in America is [h]eart disease.”131 Then, Lead Stories

stated in its article that, according to NBC News (provided with a link to NBC

News), CDC does not list obesity as a cause of death and concluded that Owens’

claim in the First Facebook Post that obesity is the number one cause of death is not

factually accurate.132

Thus, Plaintiffs’ assertion that Dr. Lee’s article supports the truthfulness of

Owens’ statements in the First Facebook Post are rebutted by the exhibits to the

Amended Complaint. Nor do the statements by Dr. Birx and Dr. Ezike support

Owens’ statements in the First Facebook Post. Moreover, in its article attached to

the Amended Complaint as Exhibit D, Lead Stories points out factual inaccuracies

in Owens First Facebook Post. Thus, Plaintiffs fail to show that statements (2) and

(3) are false under the reasonable conceivability standard.

Plaintiffs also claim in their Amended Complaint that Lead Stories made false

statements when it used the terms “Hoax Alert” and “False” in the Lead Stories

129
Id.
130
Id. Ex. A.
131
Id.
132
Id. Ex. D.
38
Article.133 The phrase “Hoax Alert” was stated right above the heading of the Lead

Stories Article as a notice concerning Owens’ Facebook Post, and the word “False”

was written in a rectangle image partly overlapping the Owens’ Facebook post

image.134 For the following reasons, I do not think that Plaintiff’s claim that “Hoax

Alert” and “False” constitute false statements is well pled under Delaware Superior

Court Civil Rule 12(b)(6).

First, Plaintiffs do not demonstrate that the word “False” is an untrue

statement under the reasonable conceivability standard. Plaintiffs argue that because

the First Facebook Post relied on an opinion from its own expert, Dr. Lee, and Lead

Stories relied on an opinion from its own expert, Dr. Ailen, Lead Stories was not

able to fact-check the First Facebook Post.135 This is not accurate. Opinions may

carry underlying assertions of facts. 136 Dr. Lee and Dr. Ailen may well have

different opinions on whether COVID-19 should be counted as cause of death.

However, as discussed above, their underlying factual assertions are not

inconsistent. More importantly, in contrast to Plaintiffs’ allegations, Dr. Lee’s

article does not support, much less confirm, the accuracy of Owens’ First Facebook

Post. Therefore, Plaintiffs fail to demonstrate under the reasonable conceivability

133
Id. ¶ 77.
134
Id. ¶ 78, Ex. D.
135
Id. ¶ 132.
136
Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990) (“expressions of ‘opinion’ may often
imply an assertion of objective fact”).

39
standard that Lead Stories made a false statement when it superimposed the word

“False” over Owens’ Facebook Post image.

Second, in Plaintiffs’ Answering Brief in Opposition to Lead Stories’ Motion

to Dismiss, Plaintiffs provide the Merriam-Webster dictionary’s definition of “hoax”

and argue that, by using the words “Hoax Alert,” Lead Stories suggested that

Plaintiffs were not just mistaken but were purposely lying, and, thus, it is

defamatory.137

However, in my opinion the term “Hoax Alert” as used in the Lead Stories

Article is much like the term “blackmail” as used in newspaper articles in Greenbelt

Cooperative Publishing Association, Inc. v. Bresler, where the developer plaintiff

sued for libel.138 In Bresler, the local newspaper defendant published several articles

stating that some people had described the developer’s negotiating position in his

negotiations with a city as “blackmail.”139 The word appeared several times and was

used once as a subheading within a news story.140 The United States Supreme Court

rejected the plaintiff’s contention that liability could be premised on the notion that

137
Plaintiffs’ Answering Brief in Opposition to Defendant Lead Stories, LLC’s Motion to
Dismiss, at 23–24 [hereinafter Pls. Answering Br. in Opposition to Lead Stories].
138
Greenbelt Co-op. Pub. Ass'n v. Bresler, 398 U.S. 6 (1970).
139
Id. at 7.
140
Id. at 7–8.
40
the word “blackmail” implied the plaintiff had committed the actual crime of

blackmail.141 The Court noted that:

“[i]t is simply impossible to believe that a reader who reached the word
‘blackmail’ in either article would not have understood exactly what
was meant: it was Bresler’s public and wholly legal negotiating
proposals that were being criticized. No reader could have thought that
either the speakers at the meetings or the newspaper articles reporting
their words were charging Bresler with the commission of a criminal
offense. On the contrary, even the most careless reader must have
perceived that the word was no more than a rhetorical hyperbole, a
vigorous epithet used by those who considered Bresler’s negotiating
position extremely unreasonable.”142

Moreover, in Montgomery v. Risen, the United States Court of Appeals for the

D.C. Circuit found that the book-author defendant’s description of the plaintiff’s

software as an “elaborate and dangerous hoax” in his book was merely “loose,

figurative, or hyperbolic,” and that such language could not serve as a basis for

liability in a defamation action.143 Similarly, the term “Hoax Alert” in the Lead

141
Id. at 14–15.
142
Id. at 14.
143
Montgomery v. Risen, 875 F.3d 709, 711 (D.C. Cir. 2017); see also Phantom Touring, Inc. v.
Affiliated Publ'ns, 953 F.2d 724, 728 (1st Cir. 1992) (finding description of plaintiff's musical
comedy as “a rip-off, a fraud, a scandal, a snake-oil job” to be merely “figurative and
hyperbolic” and thus protected by the First Amendment); McCabe v. Rattiner, 814 F.2d 839, 842
(1st Cir. 1987) (ruling that the word “scam,” used in an article regarding a timeshare sales
program, is incapable of being proven true or false); Ayyadurai v. Floor 64, Inc., 270 F.Supp.3d
343, 361–62 (D. Mass. 2017) (explaining that “charlatan” used in a loose figurative manner
cannot be defamatory); Metcalf v. KFOR-TV, Inc., 828 F. Supp. 1515, 1530 (W.D. Okla. 1992)
(noting that statement that a medical organization was a “sham” perpetrated by “greedy doctors”
is a matter of opinion); NBC Subsidiary (KCNC-TV), Inc. v. Living Will Ctr., 879 P.2d 6, 11
(Colo. 1994) (en banc) (explaining that statement that a product is a “scam” as a statement of its
value is not a defamatory statement).
41
Stories Article was used as loose, figurative, or hyperbolic language.144 It is not

reasonably conceivable that readers who read the Lead Stories’ Article would have

understood “Hoax Alert” to mean that Plaintiffs were intentionally spreading a lie.

Instead, the readers would have understood “Hoax Alert” as a rhetorical hyperbole

implying that the Owens’ Post carries inaccurate information and that the readers

should proceed cautiously when reading the post.

Since Candace Owens is a public figure, Plaintiffs’ defamation claims can

only survive a motion to dismiss if allegations in the Amended Complaint support

reasonably conceivable inferences that (1) one or more statements in Lead Stories

Article are false, and (2) Lead Stories made the statements with actual malice.

Plaintiffs fail to show that the statements in Lead Stories Article were false under

Delaware’s reasonable conceivability standard. Therefore, Plaintiffs fail to state

defamation claims against Lead Stories.

Intentional Interference with Contractual Relations

The contract between Plaintiffs and Facebook is a contract with which tortious

interference may occur. Defendants, relying upon Illominate Media Inc. v. CAIR

Florida, Inc., 145 argue that no contract actually existed between Facebook and

144
See Pls. Am. Compl., Ex. D (not indicating that Plaintiffs lied in the First Facebook Post).
145
841 Fed. Appx. 132 (11th Cir. 2020) (per curiam).
42
Plaintiffs. 146 Facebook’s Terms of Service are, not surprisingly, onerous for its

users.147 They do not change the fact, however, that a contract did exist between

Plaintiffs and Facebook.148 Offer, acceptance, and consideration, the sine qua non

of a contract, are all elements of the relationship.149

Delaware courts have adopted the Restatement (Second) of Torts in the

context of tortious interference with contractual relations,150 §766 of which states

that:

[o]ne who intentionally and improperly interferes with the performance
of a contract (except a contract to marry) between another and a third
person by inducing or otherwise causing the third person not to perform
the contract, is subject to liability to the other for the pecuniary loss
resulting to the other from the failure of the third person to perform the
contract.151

Defendants argue that §766 requires a breach of contract in order to state a claim of

tortious interference with a contractual relationship, and Facebook did not breach its

146
Id. at 136–38; see Reply Brief in Further Support of Gannett Satellite Information Network,
LLC’s Motion to Dismiss the Complaint, 7–15 [hereinafter Gannett’s Reply Br.]; Transcript of
Oral Argument held on February 24, 2021 (BL-88); Defendant Gannett’s Supplemental Letter
(Transaction ID: 66376164) [hereinafter Gannett’s Letter].
147
Pls. Am. Compl. Ex. I.
148
Id.
149
Trexler v. Billingsley, 166 A.3d 101 (Table) (Del. 2017) (“A valid contract requires an offer,
acceptance, and consideration, and the parties must have intended that the contract would bind
them.”).
150
ASDI, Inc. v. Beard Research, Inc., 11 A.3d 749, 751 (Del. 2010) (“In this context, Delaware
courts have consistently followed the Restatement (Second) of Torts, which recognizes a claim for
tortious interference with contractual relations where the defendant utilizes ‘wrongful means’ to
induce a third party to terminate a contract.”).
151
Restatement (Second) of Torts § 766 (1979).
43
contract with Plaintiffs since the contract is an “at-will” contract.152 Defendants also

assert that I should follow Illominate, in which the Eleventh Circuit affirmed the

district court’s dismissal of the plaintiffs’ claim that the defendants tortiously

interfered with the plaintiffs’ relationship with Twitter and Twitter followers.153 In

Illominate, the Eleventh Circuit found under Florida law that neither relationship is

protected.154 The court reasoned that, under Twitter’s Terms of Service, Twitter can

terminate its business relationship with the plaintiffs at any time for any reason. 155

Because the plaintiffs had no legal or contractual rights to the continued use of

Twitter, the court found that their contractual rights were not protected.156

I disagree with Defendants. First, I do not find any language in §766 that

requires breach of contract, as opposed to interference with the performance of a

contract. 157 Moreover, Comment (c) to §766 provides that “[t]he liability for

inducing breach of contract is now regarded as but one instance, rather than the

exclusive limit, of protection against improper interference in business relations.”158

Comment (g) to §766 provides that “[u]ntil he has so terminated [a contract at will],

152
Gannett’s Reply Br., 7–15; Transcript of Oral Argument held on February 24, 2021 (BL-88);
Gannett’s Letter.
153
Illominate Media, Inc., 841 Fed. Appx. 132 at 136–38 (11th Cir. Dec.29, 2020); see Gannett’s
Reply Br., 7–15; Transcript of Oral Argument held on February 24, 2021 (BL-88); Gannett’s
Letter.
154
Illominate Media, Inc., 841 Fed. Appx. at 136–38.
155
Id. at 137.
156
Id.
157
See Restatement (Second) of Torts § 766 (1979).
158
Id. cmt. (c).
44
the contract is valid and subsisting, and the defendant may not improperly interfere

with it.”159

Second, in ASDI, Inc. v. Beard Research, Inc.,160 the Delaware Supreme Court

found that the defendants tortiously interfered with the plaintiffs’ contract with the

third party, where the third party could terminate the contract at will.161 Even though

ASDI was an “at will” employment contract case, the Delaware Supreme Court

clearly explained that “[c]onduct amounting to tortious interference has been found

actionable even where the third party is lawfully entitled to terminate a contract at

will.” 162 The Court did not say that its reasoning applies only to “at will”

employment contract cases. Instead, the Supreme Court provided examples of sister

state courts’ decisions finding actionable tortious conduct that had induced

“termination of at will . . . commercial contracts, such as an attorney-client

relationship, a marketing contract, and a sawdust supply contract.”163

In Travel Syndication Technology, LLC v. Fuzebox, LLC,164 the United State

District Court for Delaware also found that tortious interference with contractual

159
Id. cmt. (g).
160
11 A.3d 749 (Del. 2010).
161
Id. at 751–52.
162
Id. at 751.
163
Id. at 751–52 (citing SliceX, Inc. v. Aeroflex Colo. Springs, Inc., 2006 WL 1699694, at *2–3
(D. Utah June 15, 2006); Lurie v. New Amsterdam Cas. Co., 270 N.Y. 379, 1 N.E.2d 472, 473
(1936); Marks v. Struble, 347 F.Supp.2d 136, 144 (D.N.J. 2004); Pure Milk Prod. Co-op. v. Nat'l
Farmers Org., 64 Wis.2d 241, 219 N.W.2d 564, 574–75 (1974); Silva v. Bonafide Mills, Inc., 82
N.Y.S.2d 155, 156–57 (N.Y.S. 1948)).
164
2012 WL 1931238 (D. Del. May 25, 2012).
45
relations can occur in at will contracts under Delaware law.165 One of the claims the

plaintiff made in Travel Syndication Technology was that the defendant wrongfully

terminated an at-will service agreement between the plaintiff and the third party.166

The District Court explained that the defendant failed to understand that whether a

termination was legally justified is not the focus of a tortious interference with

contractual relations claim; instead, the focus of the claim is whether a wrongful

inducement of the termination exists.167

However, although Plaintiffs’ contract with Facebook is a contract with which

interference may occur, Plaintiffs fail to plead that Defendants “improperly” or

“wrongfully” interfered with the performance of the contract between Plaintiffs and

Facebook under §766 of the Restatement (Second) of Torts, which requires improper

interference as an essential element. A tortious interference claim cannot survive if

the claim is premised solely on statements that are protected by the First Amendment

because the exercise of constitutionally protected speech cannot be an “improper”

or “wrongful” action. 168 Because Candace Owens is a public figure, the First

165
Id. at *6.
166
Id. at *7.
167
Id.
168
See TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1201 (10th Cir.2007) (concluding that
as the statements that allegedly caused the tortious interference claim is protected by the First
Amendment, the tortious interference claim is not actionable); Redco Corp. v. CBS, Inc., 758
F.2d 970, 973 (3d Cir.1985) (holding that because the statements that allegedly caused the
intentional interference claim are protected by the First Amendment, “the intentional interference
with contractual relations count is not actionable because there is no basis for finding that their
actions were improper”).
46
Amendment protects Defendants’ statements unless Plaintiffs’ Amended Complaint

supports reasonably conceivable inferences that (1) Defendants’ articles contain

false statements, and (2) Defendants made the statements with actual malice. 169

Defendants’ articles are protected by the First Amendment because Plaintiffs fail to

state that both Defendants’ articles contain false statements of fact made with actual

malice under the reasonable conceivability standard.

In the United States Supreme Court’s landmark case, N.A.A.C.P. v. Claiborne

Hardware Co.,170 the plaintiffs filed claims, among which was “the tort of malicious

interference with respondents’ businesses.” 171 The plaintiffs alleged that their

businesses had been damaged because of civil rights boycotts by the defendants. 172

The Supreme Court found that the defendants were not liable in damages for the

results of their nonviolent activity protected by the First Amendment.173 The Court

explained that “[w]hile the State legitimately may impose damages for the

consequences of violent conduct, it may not award compensation for the

consequences of nonviolent, protected activity [by the First Amendment]; only those

losses proximately caused by the unlawful conduct may be recovered.”174

169
See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964); Blatty v. New York Times Co.,
728 P.2d 1177, 1182–84 (Cal. 1986) (en banc).
170
458 U.S. 886 (1982).
171
Id. at 889–91.
172
Id. at 888–90.
173
Id. at 915.
174
Id. at 913.
47
 Delaware courts have not addressed the issue of whether tortious interference

with contractual relations and prospective business relations are subject to First

Amendment limitations. However, courts in other jurisdictions have ruled on this

precise matter.175 For example, in Blatty v. New York Times Co., the Supreme Court

of California found in an en banc decision that the plaintiff’s intentional interference

claims failed to overcome First Amendment protections and agreed with the

defendant that the plaintiff’s intentional interference claims failed to state a claim on

which relief could be granted.176 The court explained that:

Not only does logic compel the conclusion that First Amendment
limitations are applicable to all claims, of whatever label, whose
gravamen is the alleged injurious falsehood of a statement, but so too
does a very pragmatic concern. If these limitations applied only to
actions denominated “defamation,” they would furnish little if any
protection to free-speech and free-press values: plaintiffs suing press
defendants might simply affix a label other than “defamation” to their
injurious-falsehood claims—a task that appears easy to accomplish as
a general matter . . . and thereby avoid the operation of the limitations
and frustrate their underlying purpose.177

The Tenth Circuit also has ruled that speech protected by the First Amendment

does not constitute “improper” interference under Colorado law, which, like

Delaware, follows the Restatement (Second) of Torts in context of tortious

175
See, e.g., Blatty v. New York Times Co., 728 P.2d 1177 (Cal. 1986) (en banc); Jefferson Cty.
Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848 (10th Cir. 1999); Unelko
Corp. v. Rooney, 912 F.2d 1049 (9th Cir. 1990).
176
Blatty, 728 P.2d at 1181.
177
Id. at 1184.
48
interference claims. 178 In Jefferson County School District No. R-1 v. Moody’s

Investor’s Service, Inc., the Tenth Circuit affirmed the district court’s dismissal of

the plaintiff’s tortious interference claim based on failure to state a claim upon which

relief could be granted.179 The plaintiff contended that even if the defendant’s article

constitutes a statement protected by the First Amendment, the First Amendment is

not applicable because the plaintiff’s intentional interference with business relations

and prospective business relations claims are based on the defendant’s “conduct”—

publication of the article in a newspaper—rather than its speech. 180 The court

rejected the plaintiff’s contention that a decision to publish constitutionally protected

speech can be regulated by state tort actions for interference with contractual

relations noting that the plaintiff’s argument is not consistent with the First

Amendment principles.181 The court found that, first, the defendant’s article did not

imply false assertion of fact about the plaintiff, which was protected by the First

Amendment;182 and, second, lawful conduct or speech that is protected by the First

Amendment is “insufficient to establish the required element of improper conduct”

for a tortious interference claim.183

178
Jefferson Cty. Sch. Dist. No. R-1, 175 F.3d at 856–58.
179
Id. at 857–61.
180
Id. at 851.
181
Id. at 857 (noting that the U.S. Supreme Court concluded that “allow[ing] a plaintiff to
establish a tort claim by proving merely that a particular motive accompanied protected
speech . . . might well inhibit the robust debate that the First Amendment seeks to protect.”)
182
Id. at 857–58.
183
Id.
49
 The Ninth Circuit also explained in Unelko Corp. v. Rooney184 that a tortious

interference with business relationships claim is subject to the same first amendment

requirements that govern actions for defamation.185

In the instant case, Plaintiffs claim that USA TODAY improperly used its

“false” fact-check article to place a “false” information warning label on Plaintiffs’

Second Facebook Post in order to redirect traffic from Plaintiffs’ Facebook page to

its own website. To support this claim, Plaintiffs allege that USA TODAY, under

its contract with Facebook, maliciously and falsely fact-checked Plaintiffs’ opinion

or obviously hyperbolic, rhetorical, sarcastic statement, when in fact such statements

are not capable of being fact-checked.186 Plaintiffs argue in their Answering Brief

that the tortious interference claim against Gannett is not based on USA TODAY’s

speech but USA TODAY’s wrongful conduct.187

I reject Plaintiffs’ argument. Even though Owens’ statement “nobody is dying

of the flu anymore” may be an opinion or a hyperbolic statement as Plaintiffs argue

in Amended Complaint,188 this statement was presented with statistical facts that are

objectively verifiable. In the Second Facebook Post, incorporated as Exhibit C,

184
912 F.2d 1049 (9th Cir. 1990).
185
Id.
186
Pls. Am. Compl., ¶ 68
187
Plaintiffs’ Answering Brief in Opposition to Defendant Gannett Satellite Information
Network, LLC’s Motion to Dismiss, at 1–2 [hereinafter Pls. Answering Br. in Opposition to
Gannett].
188
Pls. Am. Compl., ¶¶ 63–65.
50
Owens stated, “[a]ccording to CDC reports – 2020 is working out to be the lowest

flu death season of the decade. 20,000 flu deaths took place before COVID-19 in

January, and then only 4,000 deaths thereafter. To give you context; 80,000

Americans died of the flu in the 2019.” 189 The USA TODAY Article, which is

incorporated into the Amended Complaint as Exhibit E, acknowledges that the

statement, “nobody is dying of the flu anymore,” is sarcasm.190 USA TODAY did

not fact-check this sarcastic statement in its article.191 Instead, the USA TODAY

Article fact-checked whether the statistical data that Owens used in the Second

Facebook Post were true and found that “[a]ccording to CDC data, none of Owens’

statistics is correct.”192

In the Amended Complaint, Plaintiffs fail to allege that any of USA TODAY’s

statements are factually false.193 Instead, they merely contend that USA TODAY

falsely fact-checked an obvious hyperbole, which is improper interference. 194

Again, I disagree. Owens provided factual statistics in her Second Facebook Post

along with her sarcastic comment, and USA TODAY fact-checked the statistics

Owens offered in the Second Facebook Post.195 As the Blatty court noted, lawful

189
Pls. Am. Compl., Ex. C.
190
Pls. Am. Compl., Ex. E (noting that some Facebook and Twitter users “read between the lines
of her sarcasm to comment on what she may be implying.”).
191
See id.
192
Id.
193
See Pls. Am. Compl.
194
Id. ¶ 69.
195
Id. Ex. C, Ex. E.
51
conduct or speech protected by the First Amendment is not enough to constitute an

essential element of improper interference.196 As Plaintiffs do not claim that USA

TODAY’s article is factually false, Plaintiffs fail to plead that the alleged

interference is improper as USA TODAY’s article is protected by the First

Amendment. Plaintiffs fail to plead a claim for tortious interference with contractual

relations against Gannett.

Plaintiffs also fail to plead “improper” interference for tortious interference

with contractual relations against Lead Stories because, as discussed previously,

their allegations against Lead Stories do not show that Lead Stories’ article contains

any false statements under the reasonable conceivability standard. Therefore,

Plaintiffs’ claim for tortious interference with contractual relations against Lead

Stories must be dismissed under Delaware Superior Court Civil Rule 12(b)(6).

Tortious Interference with Prospective Business Relations

To plead a claim of tortious interference with prospective business relations,

it is necessary for Plaintiffs to plead that the alleged interference was improper.197

In addition to pleading that the alleged interference was improper, Plaintiffs must

plead that “(a) the reasonable probability of a business opportunity, (b) the

196
Jefferson Cty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 856–58
(10th Cir. 1999).
197
DeBonaventura v. Nationwide Mut. Ins. Co., 428 A.2d 1151, 1153 (Del. 1981).
52
intentional interference by defendant with that opportunity, (c) proximate causation,

and (d) damages.”198

Plaintiffs allege in the Amended Complaint that, not only did they have a

contract with Facebook, but they also had other prospective business opportunities

with Facebook.199 Plaintiffs explain that they had opportunities to prospectively

enter into new contracts with Facebook for each new advertisement that Plaintiffs

produce and pay Facebook to manage.200 Moreover, Plaintiffs allege that they had

future business opportunities with potential purchasers of Owens’ book “Blackout,”

which was advertised on her Facebook page.201 Plaintiffs claim that, by publishing

the articles which led Facebook to place false information warning labels,

Defendants intentionally interfered with Plaintiffs’ prospective business

opportunities.202

However, Plaintiffs fail to plead that Defendants’ alleged interference was

improper, because the alleged interference was protected by the First Amendment,

as discussed above. Therefore, Plaintiffs’ claim for tortious interference with

prospective business relations against both Defendants must be dismissed based

under Delaware Superior Court Civil Rule 12(b)(6).

198
Id.
199
Pls. Am. Compl., ¶ 157.
200
Id.
201
Id. ¶¶ 151–56.
202
Id.
53
 Unfair Competition at Common Law

To state a common law claim for unfair competition, a plaintiff must allege

“a reasonable expectancy of entering a valid business relationship, with which the

defendant wrongfully interferes, and thereby defeats the plaintiff’s legitimate

expectancy and causes him harm.”203 Plaintiffs argue that Owens had a reasonable

expectancy of entering into and continuing a valid business relationship with

Facebook.204 As discussed above, there is no “improper” or “wrongful” interference,

where Defendants’ conduct was protected by the First Amendment. In Agilent Tech,

Inc. v. Kirkland, the Delaware Chancery Court noted that for an unfair competition

claim, it is not wrongful if a defendant’s interference is protected by the First

Amendment.205 Moreover, in Blatty, the Supreme Court of California affirmed the

lower court’s judgment dismissing numerous claims including unfair competition as

First Amendment limitations are applicable to all of the plaintiff’s claims. 206

203
Agilent Tech., Inc. v. Kirkland, 2009 WL 119865, at *5 (Del. Ch. Jan. 20, 2009) (quoting
Rypac Packaging Mach. Inc. v. Poges, 2000 WL 567895, at *8 (Del.Ch. May 1, 2000)).
204
Pls. Am. Compl., ¶ 159.
205
Agilent Techs., Inc., 2009 WL 119865, at *8.
206
Blatty v. New York Times Co., 728 P.2d 1177 (Cal. 1986) (en banc).
54
Therefore, Plaintiffs’ claim for unfair competition against both Defendants must be

dismissed under Delaware Superior Court Civil Rule 12(b)(6).

CONCLUSION

For the reasons stated above, I GRANT both Defendants’ Motions to Dismiss

for Failure to State a Claim under Delaware Superior Court Civil Rule 12(b)(6).

This case is dismissed.

IT IS SO ORDERED.

/s/ Craig A. Karsnitz

cc: Prothonotary

55