JB & Assocs. v. Nebraska Cancer Coalition

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/11/2019 01:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
JB & Associates, Inc., a Nebraska corporation,
et al., appellants, v. Nebraska Cancer
Coalition et al., appellees.
___ N.W.2d ___
Filed August 9, 2019. No. S-18-719.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
4. Libel and Slander: Negligence. A defamation claim has four elements:
(1) a false and defamatory statement concerning the claimant, (2) an
unprivileged publication to a third party, (3) fault amounting to at least
negligence on the part of the publisher, and (4) either actionability of the
statement irrespective of special harm or the existence of special harm
caused by the publication.
5. Libel and Slander. Under a defamation claim, the element which
requires that the statement must be false and defamatory concerning the
claimant is more precisely stated as “the statement must be false and
defamatory of and concerning the claimant.”
6. Libel and Slander: Words and Phrases. A communication is defama-
tory if it tends so to harm the reputation of another as to lower him or
her in the estimation of the community or to deter third persons from
associating or dealing with him or her.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
7. Libel and Slander: Proof. In order to meet the “of and concerning”
requirement for a group libel claim, a claimant must show either (1) the
group or class is so small that the matter can reasonably be understood
to refer to the claimant or (2) the circumstances of publication reason-
ably give rise to the conclusion that there is particular reference to
the member.
8. Libel and Slander. To determine whether a statement is defamatory and
concerning a claimant, a court must consider the circumstances under
which the publication of the communication was made, the character of
the audience and its relationship to the subject of the publication, and
the effect the publication may reasonably have had upon such audience.
9. ____. In a defamation claim, the recipient of the offending statement
must understand it as intended to refer to the claimant, but whether the
speaker intended such reference is immaterial.
10. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
11. Statutes: Intent. In determining the meaning of statutory language,
its ordinary and grammatical construction is to be followed, unless an
intent appears to the contrary or unless, by following such construction,
the intended effect of the provisions would apparently be impaired.
12. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
13. ____. A court must attempt to give effect to all parts of a statute, and if
it can be avoided, no word, clause, or sentence will be rejected as super-
fluous or meaningless.
14. Libel and Slander. A product disparagement claim under Neb. Rev.
Stat. § 87-302 (Cum. Supp. 2018) requires that the offending statements
be “of and concerning” a claimant’s goods or services.
15. ____. Determining whether a statement is “of and concerning” a claim-
ant’s goods or services in a product disparagement claim requires the
consideration of the circumstances surrounding the statement but also
requires more than general, industry-wide allegations.
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
Gene Summerlin, Brent A. Meyer, and Quinn R. Eaton, of
Husch Blackwell, L.L.P., for appellants.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
John C. Aisenbrey and Robin K. Carlson, of Stinson, L.L.P.,
and Patrick R. Turner, of Dvorak Law Group, L.L.C., for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Appellants, JB & Associates, Inc., and several other tan-
ning salons, filed an appeal of the district court’s order dis-
missing their claims of defamation and product disparage-
ment under Nebraska’s Uniform Deceptive Trade Practices
Act (UDTPA).1 Appellants challenge the court’s determina-
tion that the UDTPA requires reference to a specific product
of a claimant. Appellants further contend the court failed to
consider the facts in the light most favorable to their claims
and erred in finding there was no genuine dispute of material
fact in determining appellees’ statements were not disparaging
to appellants’ businesses, products, or services and were not
defamatorily “of and concerning” appellants. For the reasons
set forth herein, we affirm.
BACKGROUND
Appellants are tanning salons that, from 2015 to 2017,
allegedly accounted for between 68 to 71 percent of the known
tanning salons in the Omaha and Lincoln, Nebraska, mar-
kets and approximately 14 to 18 percent of all the entities in
Nebraska that provide indoor tanning services.
Appellees engage in activities related to cancer education
and prevention. In 2014, appellee Nebraska Cancer Coalition
(NCC), led by Drs. Alan G. Thorson and David J. Watts,
started a campaign named “The Bed is Dead” to educate
the public on the dangers of indoor tanning. NCC maintains
for this campaign the website “www.thebedisdead.org.” When
1
See Neb. Rev. Stat. §§ 87-301 to 87-306 (Reissue 2014 & Cum. Supp.
2018).
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JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
the website went live in March 2014, the following state-
ments were included on its “LEARN THE FACTS ABOUT
TANNING” page:
Statement 1: “Tanning Causes More Cancers than
Cigarettes[.]”
Statement 2: “Young women are hit hardest. New
cases of malignant melanoma have soared 8-FOLD in
young women since 1970, TWICE AS FAST as in young
men!”
Statement 3: “Tanning before age 35 raises your risk of
melanoma by nearly 60%.”
Statement 4: “Tanning beds have been proven to cause
skin cancer.”
Statement 5: “Your skin remembers EACH tanning
session. Just one indoor tanning session increases your
risk of melanoma by 20% and each additional use during
the same year boosts risk by another 2%.”
Statement 6: “Malignant melanoma is now the most
common cancer in young adults aged 25-29 years, second
most common in young women aged 30-34 years and
in teenagers.”
Statement 7: “Ultraviolet radiation and UV tanning
devices are rated by the Food and Drug Administration
(FDA) and the World Health Organization (WHO), among
other agencies, as carcinogenic to humans (type-1 car-
cinogens), in the highest risk category alongside arsenic,
radon, tobacco, and asbestos.”
Statement 8: “One person dies of melanoma every hour
in the U.S.”
Statement 9: “Malignant melanoma is increasing more
rapidly than any other cancer.”
Statement 10: “Tanning is addictive. One study pro-
duced withdrawal symptoms in frequent tanners with
narcotic antagonists such as are used in emergency rooms.
Studies find higher rates of alcohol, tobacco, and drug use
in females that tan.”
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303 Nebraska R eports
JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
Statement 11: “Of melanoma cases among patients
under 30 who had tanned indoors, 76 percent were attrib-
utable to tanning bed use in a recent well-designed and
conducted study.”
Statement 12: “Vitamin D is important, but exposure to
UV more than about 10 minutes actually starts to break
down the pre-vitamin D in the skin.”
Statement 13: “There is no such thing as a ‘safe tan.’
Any color the skin develops is a direct result of DNA
damage to the skin cells.”
Additionally, under a page titled “FACTS,” the website stated:
. . . Tanning facilities do not require a license to oper-
ate in Nebraska.
. . . In 2010, the U.S. Federal Trade Commission
ordered the Indoor Tanning Association to cease false
advertising claims: 1) that tanning is safe or healthy, 2)
that tanning poses no danger, and 3) that tanning does not
increase risk of skin cancer.
. . . Yet, a congressional investigative report two years
later found:
. . . Tanning Salons market their product to teenagers.
. . . Nine out of ten salons DENIED KNOWN RISKS
of indoor tanning.
Under a “TOOLKIT” page on the website, NCC also encouraged
visitors to promote the page “at your organization or school.”
NCC promoted the website in publications, social media,
and advertisements. NCC also utilized dermatologist partners
who visited Omaha schools and encouraged students to go to
the website. In the other publications, NCC made the following
additional statements to support the campaign:
Statement 14: “Evidence shows that exposure to arti-
ficial UV light before age 30 increases a person’s risk of
melanoma by 75%.”
Statement 15: “In a recent study, 76% of melanomas
diagnosed in people aged 18-29 were caused by indoor
tanning.”
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
Statement 16: “Artificial sunlight — the kind found in
tanning beds — . . . carries a significantly higher risk of
skin cancer.”
Statement 17: “Indoor tanning is thought to cause
170,000 skin cancers annually.”
Statement 18: “Worse, to get a fast tan, many tanning
beds emit ultraviolet (UV) radiation that far exceeds UV
in natural sunlight. Human evolution has not equipped
even tanned skin to withstand such extreme UV exposures
without injury.”
Statement 19: “You may be thinking that just a few
indoor tanning sessions won’t hurt — that they can’t
really be that harmful. But science shows that indoor tan-
ning is much more dangerous than previously assumed,
especially for young people. A single indoor UV tanning
exposure as a young person is linked to an alarming 34-59
percent increase in the risk of melanoma.”
Statement 20: “Not only that, but the skin remembers
every single tanning session. Melanoma risk increases
almost 2 percent for each additional indoor tanning expo-
sure in a given year.”
Statement 21: “Melanoma is now the number one can-
cer in the U.S. among young adults aged 25-29 years, and
is one of the most common cancers of teenagers.”
Statement 22: “Young women make up 70 percent of
the 1 million people who tan indoors every day in the
United States. So it is not surprising that a Mayo Clinic
study showed that in recent years melanoma has increased
twice as fast in young women as in young men.”
According to managing staff and employees of appellants,
customers asked questions about appellants’ facilities and the
dangers of indoor training after visiting appellees’ The Bed is
Dead website.
In July 2015, based upon the statements from the website
and supporting publications quoted above, appellants filed
a complaint against appellees. This complaint alleged (1)
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
violations of the UDTPA for deceptive trade practices and
product disparagement and (2) defamation for making state-
ments designed to destroy appellants’ businesses, reputations,
and livelihood.
Appellees submitted a motion for summary judgment in
January 2018 seeking dismissal of these claims. In the motion,
appellees argued that there were no genuine issues of material
fact and that appellees were entitled to judgment as a matter
of law.
Following a hearing, the district court granted appellees’
motion and dismissed appellants’ claims. In addressing the
deceptive trade practices claim, the court noted the UDTPA
states that “[a] person engages in a deceptive trade practice
when, in the course of his or her business, vocation, or occu-
pation, he or she . . . [d]isparages the goods, services, or busi-
ness of another by false or misleading representation of fact.”2
The court determined this language requires reference to a
“specific product.” Because the statements on which appel-
lants’ claims are based address the tanning bed industry as a
whole instead of appellants’ specific products, the court found
appellants failed to offer evidence that NCC’s statements
“‘disparaged the goods, services, or business of another,’”
given the broad application of the statements and the general-
ity with which the statements discuss the potential dangers
of tanning.
On the defamation claim, the court listed the elements to
prove defamation as (1) a false and defamatory statement
concerning the plaintiff, (2) an unprivileged publication to a
third party, (3) fault amounting to at least negligence on the
part of the publisher, and (4) either actionability of the state-
ment irrespective of special harm or the existence of special
harm caused by the publication. The court held that appel-
lants failed to meet the first element and prove the statements
were “‘of [and] concerning’” appellants. In so holding, the
2
§ 87-302(a)(9).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
court referenced the Restatement (Second) of Torts3 and its
explanation that a group libel claim can meet the “of and con-
cerning” requirement if either the group is so small that the
matter can reasonably be understood to refer to the member
or the circumstances of publication reasonably give rise to the
conclusion that there is a particular reference to the member.
Because the court found appellees’ statements did not spe-
cifically reference appellants or their salons and instead were
directed at tanning beds, tanning devices, and indoor tanning
generally, the court determined appellants failed to show
either option under the test for a group libel claim to meet the
“of and concerning” requirement.
ASSIGNMENTS OF ERROR
Appellants assign, restated and reordered, that the district
court erred in dismissing appellants’ claims of defamation and
product disparagement by (1) finding the evidence did not
raise a genuine dispute of material fact on whether appellees’
statements were “of and concerning” appellants for purposes
of defamation; (2) holding that a UDTPA claim for deceptive
trade practices and product disparagement requires a statement
to reference a specific product of appellants; and (3) finding
the evidence did not raise a genuine dispute of material fact
on whether appellees’ statements disparaged appellants’ busi-
nesses, products, or services.
STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law.4
3
See Restatement (Second) of Torts § 564A (1977).
4
Kaiser v. Union Pacific RR. Co., ante. p. 193, 927 N.W.2d 808 (2019).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
[2] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence.5
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.6
ANALYSIS
Defamation
We first address appellants’ assignments concerning the dis-
missal of their defamation claim and the court’s finding that
there was no genuine dispute of material fact. Specifically,
appellants claim the circumstances surrounding the NCC’s
statements indicate that they were concerning appellants.
[4-6] A defamation claim has four elements: (1) a false and
defamatory statement concerning the claimant, (2) an unprivi-
leged publication to a third party, (3) fault amounting to at
least negligence on the part of the publisher, and (4) either
actionability of the statement irrespective of special harm or
the existence of special harm caused by the publication.7 The
element which requires that the statement must be false and
defamatory concerning the claimant is more precisely stated as
“the statement must be false and defamatory of and concern-
ing the claimant.”8 A communication is defamatory if it tends
5
Id.
6
Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).
7
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816
(2015).
8
See, Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597
(1966); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11
L. Ed. 2d 686 (1964); Deaver v. Hinel, 223 Neb. 529, 391 N.W.2d 128
(1986).
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JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
so to harm the reputation of another as to lower him or her in
the estimation of the community or to deter third persons from
associating or dealing with him or her.9 In the instant case, the
district court determined appellees’ statements did not meet
the “of and concerning” requirement of the first element—
that the statements were false and defamatory and concerning
the claimant.
[7] Appellants’ defamation claim is a group libel claim in
that the offending statements concern a large group or class
of persons or businesses. Under the Restatement (Second) of
Torts, in order to meet the “of and concerning” requirement
for a group libel claim, a claimant must show either (1) the
group or class is so small that the matter can reasonably be
understood to refer to the claimant or (2) the circumstances of
publication reasonably give rise to the conclusion that there
is particular reference to the member.10 Appellants allege the
statements fall under the second option.
[8,9] To determine whether a statement is defamatory and
concerning a claimant, a court must consider the circumstances
under which the publication of the communication was made,
the character of the audience and its relationship to the subject
of the publication, and the effect the publication may rea-
sonably have had upon such audience.11 The recipient of the
offending statement must understand it as intended to refer to
the claimant, but whether the speaker intended such reference
is immaterial.12
Here, there were insufficient facts to show recipients of
NCC’s statements understood or should have understood
the statements referred or were intended to refer to appel-
lants. The offending statements did not name or mention any
9
See id.
10
Restatement, supra note 3.
11
Matheson v. Stork, 239 Neb. 547, 477 N.W.2d 156 (1991). See, also,
Moats v. Republican Party of Neb., 281 Neb. 411, 796 N.W.2d 584 (2011).
12
See Restatement (Second) of Torts § 564, comment a (1977).
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Nebraska Supreme Court A dvance Sheets
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JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
of appellants, and in fact, none of the statements addressed
“tanning salons” specifically. Instead, these allegedly defam-
atory statements addressed tanning and indoor tanning
generally.
Additionally, nothing in the content surrounding NCC’s
statements mentioned appellants or implied that the state-
ments were targeted at appellants. The Bed is Dead campaign
was statewide and was not limited to the Omaha and Lincoln
areas. The website is available to anyone in Nebraska and
elsewhere. Additionally, the offending statements could apply
to anyone tanning indoors or outdoors irrespective of their
state residency. Regardless of what internal documents said,
which were unavailable to recipients of NCC’s statements,
nothing in the surrounding content implied NCC was targeting
appellants’ tanning salons, specific locations in the state, or
appellants’ specific customer base.
Appellants contend that affidavits of their managing staff
and employees demonstrate that customers understood NCC’s
statements to refer to appellants. Specifically, these affidavits
asserted customers asked questions about appellants’ facili-
ties and the dangers of indoor tanning after visiting appellees’
The Bed is Dead website. However, the affidavits do not
state that the customers told them they believed the state-
ments were about appellants specifically and instead indicate
the customers thought the statements were aimed at indoor
tanning in general. Additionally, contrary to appellants’ argu-
ment, NCC’s utilizing dermatological partners who visited
Omaha schools and encouraged students to go to the website
also does not indicate the recipients of the offending state-
ments would have understood the statements to be targeted
at appellants.
Based upon all of the above, there were no genuine disputes
as to any material facts on appellants’ defamation claim and
appellees were entitled to judgment as a matter of law. Thus,
the district court did not err in granting appellees’ motion and
dismissing appellants’ defamation claim.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
JB & ASSOCS. v. NEBRASKA CANCER COALITION
Cite as 303 Neb. 855
Deceptive Trade Practices
Under UDTPA
Appellants’ other assignments claim the district court erred
in requiring the offending statements reference a specific
product or service to be actionable under the UDTPA and
finding that there was no genuine dispute as to any material
facts and that appellees were entitled to judgment as a matter
of law.
Section 87-302(a)(9) states that “[a] person engages in a
deceptive trade practice when, in the course of his or her busi-
ness, vocation, or occupation, he or she . . . [d]isparages the
goods, services, or business of another by false or mislead-
ing representation of fact.” Section 87-303(a) describes that
a person likely to be damaged by the alleged deceptive trade
practice may seek an injunction against the person disparaging
the petitioner’s goods, services, or business. Section 87-303(a)
further explains that “[p]roof of monetary damage, loss of prof-
its, or intent to deceive is not required.”
Appellants and appellees offer different interpretations for
§ 87-302(a)(9). Appellants argue that the plain language of
§ 87-302(a)(9) only requires the offending statement result in
disparagement of the goods, services, or business of a claimant
and that there is no requirement regarding a level of specific-
ity to identify the claimant within the statement. Appellees, in
turn, argue the use of “of another” requires that any statement
must be tied to the specific goods, services, or business of the
claimant and go beyond a general proposition applying to all
goods, services, or business within an industry.
[10-13] Statutory language is to be given its plain and
ordinary meaning, and an appellate court will not resort to
interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous.13 A statute’s ordi-
nary and grammatical construction is to be followed, unless
an intent appears to the contrary or unless, by following such
13
In re Estate of Fuchs, 297 Neb. 667, 900 N.W.2d 896 (2017).
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JB & ASSOCS. v. NEBRASKA CANCER COALITION
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construction, the intended effect of the provisions would appar-
ently be impaired.14 It is not within the province of a court
to read a meaning into a statute that is not warranted by the
language; neither is it within the province of a court to read
anything plain, direct, or unambiguous out of a statute.15 A
court must attempt to give effect to all parts of a statute, and if
it can be avoided, no word, clause, or sentence will be rejected
as superfluous or meaningless.16
The word “disparage” is defined by Black’s Law Dictionary
as “1. To speak slightingly of; to criticize (someone or some-
thing) in a way showing that one considers the subject of
discussion neither good nor important. 2. To degrade in esti-
mation by disrespectful or sneering treatment.”17 While “of
another” is not defined under the statute, the plain language of
§ 87-302(a)(9) and the definition of “disparage” require that the
statement be specific enough to the claimant’s goods, services,
or business that the statement could actually be understood to
concern those items and it could be determined whether the
statement represented false or misleading facts.
Under common-law defamation, trade libel, and product
disparagement cases, other jurisdictions have similarly required
libelous statements to concern a claimant’s goods and serv­
ices.18 These jurisdictions have held that though the offending
statements need not explicitly refer to another’s product, the
statements must be “of and concerning” a claimant’s products
14
Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717
(2019).
15
In re Estate of Fuchs, supra note 13.
16
Patterson, supra note 14.
17
Black’s Law Dictionary 570 (10th ed. 2014).
18
Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186 (3d Cir. 1998);
QSP, Inc. v. Aetna Cas. & Sur. Co., 256 Conn. 343, 773 A.2d 906 (2001);
HipSaver, Inc. v. Kiel, 464 Mass. 517, 984 N.E.2d 755 (2013); Wolfe v.
Gooding & Company, Inc., No. 14-CV-4728, 2017 WL 3977920 (D.N.J.
Sept. 11, 2017) (unpublished opinion).
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in that a reasonable person who saw or read the statements
and was familiar with the circumstances reasonably believed
that the statements referred to the claimant’s specific products
or services.19 Such holdings are relevant to our interpreta-
tion of product disparagement under § 87-302, because the
Legislature’s use of the “of another” language indicates an
incorporation of the same “of and concerning” element pres-
ent in common-law actions aimed at unfair and deceptive
trade practices. While we reach this conclusion regarding the
meaning of the “of another” language independent of legisla-
tive history, we note that contrary to appellants’ suggestion that
such an interpretation conflicts with the reasons motivating
the enactment of this provision, legislative history suggests
that the enactment of the UDTPA was not intended to vary
from existing common-law actions of unfair and deceptive
trade practices.20
Additionally, the Seventh Circuit Court of Appeals, utiliz-
ing Illinois law, applied the “of and concerning” require-
ment to the Uniform Deceptive Trade Practices Act model,
similar to § 87-302. In Brown & Williamson Tobacco Corp. v.
Jacobson,21 the Seventh Circuit addressed a product disparage-
ment claim under the Illinois statute brought by a cigarette
manufacturer for statements made during a newscast regarding
cigarettes. In dismissing the disparagement claim and holding
that disparagement under the Illinois statute requires more than
general, industry-wide statements, the court reasoned, “The
[defendant’s] broadcast does not suggest that [the plaintiff’s]
cigarettes are defective, or any more unhealthful than other
brands of cigarettes . . . .”22 This holding is relevant to our
19
See id.
20
Judiciary Committee Hearing, L.B. 641, 80th Leg., 9-11 (Apr. 14, 1969).
21
Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262 (7th Cir.
1983).
22
Id. at 274.
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analysis, because the Legislature expressly provided that the
UDTPA “shall be construed to effectuate its general purpose to
make uniform the law of those states which enact” the Uniform
Deceptive Trade Practices Act model.23
[14,15] Accordingly, considering the use of “of another” in
§ 87-302(a)(9), the definition of “disparage,” the requirements
of product disparagement claims under the common law, and
interpretation of disparagement under the Uniform Deceptive
Trade Practices Act model, we hold that a product disparage-
ment claim under § 87-302 requires that the offending state-
ments be “of and concerning” a claimant’s goods or services.
Determining whether a statement is “of and concerning” a
claimant’s goods or services requires the consideration of the
circumstances surrounding the statement but also requires more
than general, industry-wide allegations.24
Appellants cite to Auvil v. CBS 60 Minutes 25 for their
proposition that a general reference to goods and services is
sufficient to disparage a business’ specific goods and services
under § 87-302. However, the Auvil decision is not at odds
with our holding detailed above. The court in Auvil found that
a statement directed at a chemical used in conjunction with
apple farming and accompanying pictures of red apples was
sufficient to identify that a television segment was directed
at Washington State apple growers to bring a disparagement
claim.26 The court based its decision on the proposition that
it was commonly known “throughout the country, if not the
world, that Washington is the prime producer of red apples.”27
The court in Auvil looked at the circumstances surrounding
23
Neb. Rev. Stat. § 87-305 (Reissue 2014).
24
See, Brown & Williamson Tobacco Corp., supra note 21; Moats, supra
note 11; Matheson, supra note 11.
25
Auvil v. CBS 60 Minutes, 800 F. Supp. 928 (E.D. Wash. 1992).
26
Id.
27
Id. at 930.
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the broadcast, the fact that red apples were synonymous with
Washington apples, and the understanding that disparagement
claims concerned the product instead of the individual to
determine the statements were made concerning the claim-
ants’ products.
In the instant case, NCC’s statements were not “of and
concerning” appellants or their products. As discussed in the
previous section, the statements do not mention appellants
or identify products or services of appellants beyond general
statements on the risks of indoor tanning and tanning overall.
Additionally, nothing in the content surrounding the state-
ments mentioned appellants or indicated the statements were
concerning appellants’ specific goods and services. Appellants
make several arguments involving internal communications
within NCC to support their argument that NCC was attempt-
ing to target them, but these documents were unavailable to
the public and could not lead readers of the website to under-
stand NCC’s statements were targeting appellants’ services
and products.
Furthermore, appellants’ argument that they occupy the
majority of the indoor tanning facilities in the Omaha and
Lincoln areas is without merit. The website and the statements
contained therein were available and applicable nationwide,
and appellees’ The Bed is Dead campaign describes itself as
a statewide operation, which is not limited to the Omaha and
Lincoln areas. Additionally, the statements were applicable to
other indoor tanning options not included in appellants’ market
share analysis—including health clubs, apartments, and condo-
miniums—and to outdoor tanning, as well.
Based upon all of the above, there were no genuine disputes
as to any material facts on appellants’ product disparagement
claim and appellees were entitled to judgment as a matter
of law. Thus, the district court did not err in granting appel-
lees’ motion and dismissing appellants’ product disparage-
ment claim.
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JB & ASSOCS. v. NEBRASKA CANCER COALITION
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CONCLUSION
The district court did not err in finding that there were no
genuine disputes as to any material facts and that appellees
were entitled to summary judgment on appellants’ defamation
claim. Additionally, a product disparagement claim requires
that the statement be “of and concerning” a claimant’s goods
or services, which can be determined from consideration of
the circumstances surrounding the statement but also requires
more than general, industry-wide allegations. Accordingly,
there were no genuine disputes as to any material facts and
the district court did not err in dismissing appellants’ product
disparagement claim.
A ffirmed.