Parent Rights for All

This website is owned and maintained by friends and supporters of Blain Dillard in his fight to preserve the First Amendment rights of ALL parents as they advocate for their children's education. The purpose of the site is to post information about the lawsuit of "MVP vs Blain Dillard," including posting of court documents publicly available from the Fourth Judicial District Court, Utah County, Utah, in both original and website-friendly formats. Please refer to original copies of documents for precise context, content, and formatting.

Blain Dillard is a N. Carolina father of 3 and is being sued by Utah common core math curriculum vendor Mathematics Vision Project (MVP) for criticizing their program.

Statement from Blain Dillard's attorney Jeffrey Hunt at Parr Brown Gee & Loveless:

“It is alarming that a parent would be sued for defamation for expressing opinions and making truthful statements about his son’s high school math curriculum. The lawsuit appears to be an attempt to silence Mr. Dillard and other critics of MVP, and to chill their First Amendment rights to speak about MVP’s services. We believe the lawsuit has no legal merit and we intend to vigorously defend the right of Mr. Dillard, as well as other parents, to have a voice in the education of their children.”

Contact Jeffrey Hunt if more information is needed about the case.

Legal Defense Fund - Support Blain's and YOUR First Amendment rights

See wakemvp.com for more information about MVP in Wake County Public School System

JOIN OUR FACEBOOK GROUP for more information and conversation about MVP in Wake County, and other related math education topics. Note: You must answer questions related to being a Wake County, NC citizen OR your interest in this topic, if you are from elsewhere.

Complaint filed by STRONG & HANNI, PC, July 25, 2019

  • Plaintiff: Mathematics Vision Project, LLC
  • Defendant: Blaine (sic) Dillard

WEB VERSION OF COMPLAINT SUMMONS

Responses filed by Parr Brown Gee & Loveless, September 9, 2019

MVP Posted this statement on their website around Sept 19:

Clarifications Regarding Our Work in Wake County

Next step in case: MVP will file responses to the documents Blain's attorney filed on September 9


Motion for Judgement on the Pleadings (pages 1-15)

(Front matter omitted here: Table of Contents, Table of Authorities, Statutes, Rules, and Other Authorities, pages i - viii)

Jeffrey J. Hunt (5855) (jhunt@parrbrown.com)

David C. Reymann (8495) (dreymann@parrbrown.com)

Sara Meg Nielson (13824) (snielson@parrbrown.com)

PARR BROWN GEE & LOVELESS, P.C.

101 South 200 East, Suite 700

Salt Lake City, Utah 84111

Telephone: (801) 532-7840

Facsimile: (801) 532-7750

Attorneys for Defendant Blain Dillard

IN THE FOURTH JUDICIAL DISTRICT COURT IN AND FOR UTAH COUNTY, STATE OF UTAH

MATHEMATICS VISION PROJECT, LLC, a Utah Limited Liability Company,

Plaintiff,

vs.

BLAIN DILLARD, an individual,

Defendant.

MOTION FOR JUDGMENT ON THE PLEADINGS

(Hearing Requested)

Case No. 190401221

Judge James R. Taylor


MOTION AND RELIEF SOUGHT

Pursuant to Rule 12(c) of the Utah Rules of Civil Procedure, Defendant Blain Dillard (“Dillard”) hereby moves for Judgment on the Pleadings dismissing with prejudice each of Plaintiff Mathematics Visions Project, LLC’s (“MVP”) claims asserted in the complaint filed on or about July 25, 2019 (“Complaint”). The basis for this motion is that MVP’s two causes of action against Dillard—Defamation: libel and slander and Tortious Interference with Business Relations—fail to state a claim on which relief may be granted. Pursuant to Utah Rule of Civil Procedure 7(h), Dillard requests a hearing on this motion.

INTRODUCTION

This case is about a company attempting to use the judicial process to punish a parent who dared to voice reasonable concerns that the company’s educational program was not beneficial to his child and other similarly situated children. Instead of addressing such concerns in a productive dialogue, the company is seeking to silence them outright. But it is a parent’s obligation, right, and privilege to take action and, in this case, speak publicly to government officials and institutions and to other interested parents about matters of such important public concern as the well-being and proper education of children. Moreover, the Supreme Court has time and again emphasized that commentary like the statements at issue here—issues of public importance—“occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 452 (2011). Here, the principles of law making up that special protection require MVP’s claims be dismissed as a matter of law.

In 2017, Dillard’s son, LD, was a freshman in high school and was earning—and had always earned—A and B grades in his math courses. All of that changed in 2018, however, when Dillard noticed that LD’s grades in his sophomore Math 2 course declined suddenly and drastically to Ds and Fs. Like any concerned parent would do, Dillard began looking into the cause(s) of that decline. That inquiry and the information Dillard assembled suggested to Dillard that his county school district’s adoption of MVP’s methods and curriculum for math instruction was the predominant factor in his son’s new difficulty with math. Specifically, MVP’s products utilize a “discovery methodology” where students work in groups to figure out math concepts independently while teachers merely facilitate the discussion rather than actually teach, i.e., give instruction or explanations about fundamental concepts. This approach, which was quite new to the school district, obviously was not working for LD.

And Dillard very soon found that his son was not alone. Dillard encountered other parents in his county—Wake County, North Carolina—and elsewhere whose children’s math performance was suffering under MVP’s program and who were themselves raising concerns about MVP’s methods and curriculum, including on various parent Facebook groups of which Dillard was aware. These parents attended protests and registered their concerns about MVP’s program in school board meetings. A group of 16 parents even filed a formal complaint with the school district related to the MVP program. Students, too, spoke out about MVP’s program; approximately 400 of LD’s fellow students conducted a student-led walkout to protest the school district’s use of MVP’s products and methods.

For his part, Dillard sought to provide information about MVP’s program to those interested. As a result, in late January 2019, Dillard created a Facebook group specifically dedicated to supporting parents of students using the MVP program, called “WCPSS (Footnote 1) Parents of MVP Math Students.” He also created a webpage (Wake County MVP Parent Page, wakemvp.com) and blog (Wake MVP Parent, wakemvp.blogspot.com) where he and others gathered research, resources, and data about MVP’s programs, all in an attempt to encourage scrutiny and discussion by the Wake County school district, and others, of what he saw as educational techniques that were not well-received by students and that were not aiding their learning or growth.

Despite Dillard being just one of many parents who have spoken out about MVP’s program, MVP has singled out Dillard for retribution. To do so, MVP cherry-picked seven statements from Dillard’s publications and public comments about MVP and alleges that they are defamatory and that such defamation tortiously interfered with MVP’s economic relations. MVP characterizes the statements at issue (the “Statements”) as:

1. Dillard’s March 27, 2019 blog post where “Dillard published a post titled ‘MVP Eradicates WCPSS’s Performance Lead,’ wherein he claimed that WCPSS’s math performance was decreasing and that MVP was the cause” and further made “statements claiming that the causational relationship was statistically provable.” [Compl. ¶ 22.] This Motion will refer to this statement as the “Math Performance Statement,” and a copy of the March 27, 2019 blog post is attached as Exhibit A (Footnote 2).

2. Dillard’s March 28, 2019 blog post where “Dillard posted a fabricated story about two girls who had, allegedly, been severely negatively affected by MVP.” [Compl. ¶ 20.] This Motion will refer to this statement as the “Parody Post,” and a copy of the March 28, 2019 blog post is attached as Exhibit B. (Footnote 3).

3. Dillard’s April 3, 2019 blog post stating that “‘80-90%’ of students using MVP are ‘either drowning in math chaos Hell, or the teacher is partially supplementing the program to keep results afloat and attention down.’” [Compl. ¶ 16 (purporting to quote Dillard).] This Motion will refer to this statement as the “Math Chaos Hell Statement,” and a copy of the April 3, 2019 blog post is attached as Exhibit C. (Footnote 4)

4. Dillard’s April 3, 2019 blog post where “Dillard claimed that he conducted a surveying [sic] showing that only 2% of teachers are supportive of MVP.” [Compl. ¶ 18.] This Motion will refer to this statement as the “Survey Statement,” and a copy of the April 3, 2019 blog post is attached as Exhibit C.

5. A document titled “Conversations/Interactions with American Fork High School Math Teacher” posted on the internet after May 10, 2019, indicating that “‘Based on testimonies from teachers at American Fork High School in Utah who teach former students of MVP…, MVP is not effective.’” [Compl. ¶ 24 (purporting to quote Dillard).] This Motion will refer to this Statement as the “Ineffective Statement,” and a copy of the entire referenced document is attached as Exhibit D.

6. Dillard’s statement at an April 23, 2019 Wake County school board meeting that “‘MVP’s success data [has been] proven to have been exaggerated or in some cases possibly even fabricated.’” [Compl. ¶ 14 (purporting to quote Dillard).] This Motion will refer to this statement as the “School Board Statement.(Footnote 5)

7. Dillard’s May 26, 2019 Facebook post indicating “that math performance improvements from Chapel Hill and Wake County had been ‘falsified.’” [Compl. ¶ 26.] This Motion will refer to this statement as the “Facebook Post,” and a copy of the May 26, 2019 Facebook Post is attached as Exhibit E. (Footnote 6)

As explained below, however, none of the Statements can support any claim against Dillard, and MVP’s claims should be dismissed as a matter of law. Defamation claims—like MVP’s claim—are disfavored due to their potential to chill free speech, and are limited to words that expose a person to “public hatred, contempt, or ridicule.” West v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994)). Because “[d]efamation claims always reside in the shadow of the First Amendment,” Jensen v. Sawyers, 2005 UT 81, ¶ 50, 130 P.3d 325, they are subject to various pleading and proof requirements and other standards that safeguard speech and require early dismissal when they are not met.

Such is the case with MVP’s Complaint, which fails to state a claim against Dillard as a matter of law for no fewer than six reasons.

First, the Statements call into question only the quality of MVP’s products and services and, as a result, cannot support a defamation claim. Instead, MVP’s claim is properly viewed under Utah law as stating a claim for “injurious falsehood,” not defamation. Injurious falsehood claims are narrower and harder to prove than defamation claims, requiring actual knowledge of falsity and specifically pled special damages, neither of which MVP has adequately pled.

Second, even if MVP’s claim is treated as a defamation claim, the Statements are incapable of conveying defamatory meaning given the context in which they were made and their status as nonactionable opinion based on disclosed facts, satire or parody, and rhetorical hyperbole. Essentially, any reasonable reader would understand Dillard’s Statements to be expressions of opinion, made during the course of a robust debate during which opposing parties are expected to express strong and divergent views. And those types of communications simply do not convey defamatory meaning.

Third, MVP has failed to plead facts sufficient to show that the Statements are false. Because the Statements concern matters of public interest, it is MVP’s burden to plead the falsity of the statements, and MVP’s mere conclusory allegations of falsity do not suffice.

Fourth, under Utah law, when a plaintiff pleads a claim for defamation per quod, rather than defamation per se, he must specifically plead “special damages,” i.e., specific, measurable out-of-pocket losses. Because the Statements do not constitute defamation per se, and because the Complaint does not adequately allege special damages, MVP’s claim should be dismissed.

Fifth, and in any event, the Statements are privileged under Utah’s public interest, family relationship, and official proceedings privileges. Each of these privileges protects a father’s right to speak openly and publicly on matters that concern his child and his child’s education, particularly when they are expressed in connection with efforts to communicate with and participate in the decision making processes of government bodies and officials. To overcome these privileges, MVP is required to plead facts (not mere legal conclusions) supporting a showing that Dillard acted with either common law or actual malice. Because MVP has alleged no such facts, its defamation claim fails as a matter of law.

Finally, MVP’s second claim for relief—tortious interference—is wholly dependent on its defamation claim. Because Dillard has not defamed MVP, he has not tortiously interfered with any of MVP’s economic relations and that claim should be dismissed as well.

SPECIALIZED STANDARD OF REVIEW

“[A] motion for judgment on the pleadings is reviewed under the same standard as … a motion to dismiss” and should be granted “if, as a matter of law, the [non-moving party] could not recover under the facts alleged.” Golding v. Ashley Cent. Irr. Co., 793 P.2d 897, 898 (Utah 1990). In this inquiry, “[m]ere conclusory allegations …, unsupported by a recitation of relevant surrounding facts, are insufficient to preclude dismissal.” Kuhre v. Goodfellow, 2003 UT App 85, ¶ 21, 69 P.3d 286 (internal quotations omitted). Nor is this Court bound to accept legal conclusions, deductions, and opinions couched as facts. Commonwealth Prop. Advocates, LLC v. Mortgage Elec. Registration Sys., Inc., 2011 UT App 232, ¶ 16, 263 P.3d 397.

Because MVP’s claim implicates free speech and First Amendment concerns, however, the standard of review departs from the typical. As the Utah Supreme Court has explained:

Generally, when an appellate court reviews the district court’s decision to grant a motion to dismiss for failure to state a claim upon which relief may be granted, “we accept as true all material allegations contained in the complaint and all reasonable inferences drawn therefrom.” West v. Thomson Newspapers, 872 P.2d 999, 1004 (Utah 1994). We review these rulings under a correctness standard because whether a particular array of allegations set out a cognizable cause of action is purely a question of law. Id. When reviewing claims of defamation, however, a reviewing court takes a slightly different approach. As we stated in O’Connor v. Burningham, “the presence of the First Amendment demands a subtle although significant variation in the treatment of inferences drawn from undisputed facts.” 2007 UT 58, ¶ 24, 165 P.3d 1214. The reviewing court must look to the context of the allegedly defamatory statement and then, in a nondeferential manner, “reach an independent conclusion about the statement’s susceptibility to a defamatory interpretation.” Id. ¶ 26. Whether a statement is susceptible to a defamatory interpretation is a question of law. Id. Therefore, we cede no discretion to the district court’s view on this question. Nor do we indulge Mr. Jacob by interpreting inferences that may be reasonably drawn from the statements in favor of a defamatory meaning. Id. ¶ 27. As we stated in O’Connor, “To accommodate the respect we accord its protections of speech, the First Amendment’s presence merits altering our customary rules of review by denying a nonmoving party the benefit of a favorable interpretation of factual inferences.” Id.

Jacob v. Bezzant, 2009 UT 37, ¶ 18, 212 P.3d 535.

Further, because this case involves the First Amendment, there is a strong policy in favor of disposing of deficient claims at an early stage in the litigation to prevent the chilling of free speech. Courts routinely decide First Amendment issues as a matter of law, rather than letting such issues go to trial, because of the constitutional interests at stake. See, e.g., West, 872 P.2d at 1015 n.27 (“[B]oth this court and the United States Supreme Court have expressed a preference for pretrial resolution of defamation actions when it appears that a reasonable jury could not find for the plaintiffs.” (internal quotations omitted)).

For the reasons set forth below, these special legal standards for cases involving First Amendment interests weigh heavily in favor of granting Dillard’s Motion and dismissing MVP’s claims on the pleadings.

ARGUMENT

MVP’s attempt to stifle public criticism of its product and to punish a parent for exercising his right to speak on matters that impact his child and other children fails for multiple reasons. Ultimately, the law protects both what Dillard said and his right to say it. Because MVP’s claims cannot subsist in the face of those protections, MVP’s Complaint should be dismissed in its entirety and as a matter of law.


I. MVP’S DEFAMATION CLAIM IS ACTUALLY A CLAIM FOR INJURIOUS FALSEHOOD AND IS NOT ADEQUATELY PLED.

Although MVP labels its cause of action as one for “defamation,” courts “pay little heed to the labels placed on a particular claim, favoring instead an evaluation based on the essence and substance of the claim.” Jensen, 2005 UT 81, ¶ 34. And the substance of MVP’s defamation claim is not defamation, but rather a distinct tort called “injurious falsehood” (sometimes referred to as “business disparagement”). This distinction matters because the elements of the two claims are slightly but meaningfully different. (Footnote 7)

Though injurious falsehood shares some vocabulary with the tort of defamation, “there is a basic distinction between the two” and “[t]hey protect separate and unrelated interests.” Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566, 568 (Utah 1988). Injurious falsehood is “based on an intentional interference with economic relations” and unlike defamation, does “not protect a person’s reputation.” Id.; see also Sack on Defamation § 13:1.4[B]. “[T]he common law has always distinguished between statements which impugn a person’s reputation and those which disparage a product and it has always given the owner or marketer of a product very limited rights against the publisher of statements which disparage the product.” Melaleuca, Inc. v. Clark, 78 Cal. Rptr. 2d 627, 637 (Cal. Ct. App. 1998).

Thus, a plaintiff’s claim that he has been harmed in some way by an allegedly false statement is not automatically a claim for defamation. The subject matter of the statement controls. And it has long been the law in Utah that where the statement concerns “the quality of plaintiff’s product,” as the Statements do, the claim is one for injurious falsehood, not defamation. Direct Import Buyers Assoc. v. KSL, Inc., 538 P.2d 1040, 1042 (Utah 1975) (“Direct Import I”) (applying injurious falsehood elements despite plaintiff labeling its claim “libel and slander”), overruled in part on other grounds, 572 P.2d 692 (Utah 1977) (“Direct Import II”); Mile High Contracting v. Deseret News Publ’g Co., No. 170906024 MI, 2018 WL 7374786, at *6 (Utah Dist. Ct. March 16, 2018) (holding claim pled as defamation was actually claim for injurious falsehood and dismissing for failure to adequately plead that tort); see also

Watkins v. Gen. Refractories Co., 805 F. Supp. 911, 917 (D. Utah 1992) (“[I]njurious falsehood concerns statements regarding the quality of the plaintiff’s product or the character of the plaintiff’s business. By contrast, a defamation claim concerns statements about an individual’s reputation.” (citation omitted)).

Ultimately, a statement must do more than impugn the quality of a plaintiff’s goods or services to cross the line from injurious falsehood into defamation. It must attack directly the integrity and character of the business in a manner beyond the quality of its performance, such as by alleging “‘fraud, deceit, dishonesty, or reprehensible conduct in its business.’” U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 924 (3d Cir. 1990) (citation omitted); see also Restatement (Second) of Torts § 626 cmt. d (1977) (statement that “attack[s] the quality of the thing in question and does not attack the personal character of its owner as vendor or lessor” is injurious falsehood, not defamation).

Thus, if a statement accuses an individual of personal misconduct in his or her business or attacks the individual’s business reputation, the claim may be one for defamation per se; however, if the statement is directed towards the quality of the individual’s product or services, the claim is one for business disparagement.

Clark Cnty. Sch. Dist. v. Virtual Educ. Software, Inc., 213 P.3d 496, 504 (Nev. 2009).

The Utah Supreme Court’s decision in Direct Import I is instructive. In that case, a company claimed that its product increased gas mileage and reduced pollution when used in a carburetor, but the media defendant reported that (a) an independent lab determined that the product did not improve mileage and could cause burned valves and admit dust into the engine; (b) though the company represented that testing on the product was going “very well,” an individual involved in that testing reported that he noticed no improvement in gas mileage; (c) an auto executive thought the product was a waste of money; (d) the product would be unlawful if it made a car’s air pollution control equipment less effective, and testing on the product found that it increased hydrocarbon and nitrogen oxide emissions; and (e) the company, in addition to claiming to be developing a new engine that yields 60-70 miles per gallon, was “close to a cure for cancer and the common cold.”

Direct Import I, 538 P.2d at 1041-42. Though the company asserted a claim for libel and slander based on these statements, the court determined that the claim sounded in injurious falsehood because the statements were “merely a depreciation of the quality of plaintiff’s product.” Id. Indeed, in a subsequent appeal, the same court stated that “[w]hile the words used cast doubt on the efficacy of the [product], they did not in any manner whatsoever reflect on the character, reputation, or want of skill on the part of [plaintiff].” Direct Import II, 572 P.2d at 694. Stated differently, accusing a business of making unsupported claims of success and of selling a product that an individual in the industry thought was a waste of money, that did not have the efficacy the business claimed, and that was perhaps, illegal, was not the same thing as directly attacking the business’s reputation or character. The same is true here.

None of the Statements crosses the line from injurious falsehood into defamation. Indeed, the Statements each are directed at the quality or efficacy of MVP’s products and services. And nothing in the Statements accuses MVP of deceit, fraud, or dishonesty or otherwise attacks the personal character of its owners. (Footnote 8) If simply accusing a business of offering substandard products and services satisfied the defamation standard, there would be no separate tort of injurious falsehood—defamation would swallow it entirely. At most, the Statements consist of garden-variety customer complaints expressing dissatisfaction with a product likely to be seen on any consumer review website. Such falls squarely within the realm of business disparagement, not defamation. (Footnote 9)

This conclusion has immediate terminating consequences for MVP’s defamation claim. By design, “injurious falsehood is a far more difficult cause of action than defamation to sustain[.]” Sack on Defamation § 13:1.4[A]. Two differences are particularly relevant here—actual malice and special damages. (Footnote 10)

First, a plaintiff asserting injurious falsehood must plead and prove that the defendant published the alleged statements with “actual knowledge that the statements at issue were false.” Dillon v. S. Mgmt. Corp. Ret. Trust, 2014 UT 14, ¶ 35, 326 P.3d 656. (Footnote 11) This is a subjective, not objective, inquiry. Id.

The Complaint’s conclusory allegation that “Dillard knew these statements were false” at the time he made them, [Compl. ¶¶ 28, 36], does not satisfy MVP’s pleading obligation, absent well-pled facts to support that conclusion. Kuhre, 2003 UT App 85, ¶ 21 (conclusory allegations are insufficient). And the Complaint contains no such facts. As a result, MVP has not adequately alleged that Dillard published the statements with actual malice.

Second, injurious falsehood claims “require a plaintiff to prove special damages,” i.e., specific, measurable out-of-pocket losses. Bass, 761 P.2d at 568; see also Farm Bureau Life Ins. Co. v. Am. Nat’l Ins. Co., 505 F.Supp.2d 1178, 1191 (D. Utah 2007); Dillon, 2014 UT 14, ¶ 36. These damages must be pled with specificity. See id.; Utah R. Civ. P. 9(h). “There are no general or presumed damages” in injurious falsehood cases. Bass, 761 P.2d at 568.

The Complaint likewise fails this requirement to plead in detail the customers or accounts that it had and lost to quantify such losses with specificity, all of which Utah courts require. See Diesel Power Source v. Crazy Carl’s Turbos, Inc., No. 2:14-cv-00826-DN, 2017 WL 1131892, at *3 (D. Utah March 24, 2017) (“special damages require the pleading of considerable detail”).

Instead, MVP makes a general averment of harm to its reputation and then, based on “information and belief” speculates that MVP has experienced other generalized harms, which are presented in a list separated by an “and/or” conjunctive. (Footnote 12) [Compl. ¶ 29.] In other words, MVP guesses that it may have experienced some type of harm, but cannot and does not say with any exactness what that harm may be. This is not sufficient. See Mast v. Overson, 971 P.2d 928, 933 n.6 (Utah Ct. App. 1998) (“[P]laintiffs who cannot show [concrete] damage should … refrain from filing suit precipitously and then hoping to exploit discovery tools to uncover some previously unknown negative comment….Rule 11 only bolsters that prescription.”).

Because MVP’s defamation claim is, in substance, a claim for injurious falsehood, and because MVP has failed to allege at least two essential elements of that claim, this Court should dismiss it as a matter of law.


II. THE STATEMENTS ARE NOT ACTIONABLE BECAUSE THEY ARE NEITHER DEFAMATORY NOR FALSE.

Even if MVP’s claim is treated as one for defamation, it still fails as a matter of law because MVP has not identified any statement by Dillard that is both defamatory and false. As an initial matter, however, this Court’s analysis of MVP’s defamation claim must be based on statements that Dillard actually made, not on MVP’s characterization of those statements. This is particularly important where MVP’s characterizations are at odds with Dillard’s actual speech. Under such circumstances, Dillard’s actual statement controls, and the Court need not accept as true MVP’s characterizations in the Complaint. See In re FX Energy, Inc. Sec. Litig., Nos. 2:07-cv-874 CW (consolidated), 2009 WL 1812828, at *6 (D. Utah June 25, 2009).

Continuation of Motion for Judgement on the Pleadings (pages 33-44)


III. THE STATEMENTS ARE NOT DEFAMATORY PER SE AND MVP HAS NOT PLED SPECIAL DAMAGES.

As noted above, MVP has failed to plead special damages, instead asserting only generalized statements of harm. A plaintiff who fails to plead special damages can state a defamation claim only if the statements he alleges are defamatory per se, as opposed to per quod. See Baum v. Gillman, 667 P.2d 41, 42-43 (Utah 1983); Jacob, 2009 UT 37, ¶¶ 26-29, 31 (dismissing defamation claim on motion for judgment on the pleadings in part because statements constituted defamation per quod and plaintiff failed to plead special damages). And because the statements alleged by MVP are not defamatory per se, MVP’s claim fails. Defamation per se is a strictly limited category under Utah law. As the Utah Supreme Court has explained:

In order to constitute slander per se, without a showing of special harm, it is necessary that the defamatory words fall into one of four categories: (1) charge of criminal conduct, (2) charge of a loathsome disease, (3) charge of conduct that is incompatible with the exercise of a lawful business, trade, profession, or office; and (4) charge of the unchastity of a woman. If the words spoken do not apply to one of the foregoing classifications, special harm must be alleged.

Allred v. Cook, 590 P.2d 318, 320 (Utah 1979).

The only category on which MVP possibly could rely is the third category—charge of conduct that is incompatible with the exercise of a lawful business, trade, profession, or office. In order to be actionable under this category, however, the words used must “impute a want of capacity or fitness for engaging in the plaintiffs’ profession or … render him unfit to fulfill his duties.” Allred, 590 P.3d at 320; see also Boisjoly v. Morton Thiokol, Inc., 706 F. Supp. 795, 800-01 (D. Utah 1988) (statement that individual had engaged in actions that violated contracts was not per se defamatory because it would not “reflect so poorly on [the man’s] capacity or fitness” to engage in his profession). Indeed, the statement “must, as its natural and proximate consequence, compel the conclusion that plaintiff will be damaged.” Larson v. SYSCO Corp., 767 P.2d 557, 560 (Utah 1989).

The Statements are not defamatory per se under this standard because they criticize only MVP’s products and services, which, as discussed above, is an action for injurious falsehood, not defamation. See Section I, supra. And even if MVP’s claim did sound in defamation, the Statements would not qualify as defamation per se. “[A] communication is defamatory per se if it imputes misconduct in a person's trade, profession, office, or occupation. A mere expression of dissatisfaction with a person's professional performance is not defamatory per se.” 50 Am. Jur. 2d Libel and Slander § 205 (emphasis added);

Am. Needle & Novelty, Inc. v. Drew Pearson Mktg., Inc., 820 F. Supp. 1072, 1075–76 (N.D. Ill. 1993) (“Although the September 17th letter uses passionate words…the words nevertheless fail to accuse American Needle of fraud or mismanagement, nor do they impugn its business integrity….As such, American Needle’s claim of libel per se fails.”). The Statements, by merely criticizing MVP’s product, do not impute any misconduct to MVP and, thus, are not defamatory per se.

The School Board Statement and the Facebook Post are not defamatory per se for an additional reason: both are susceptible to multiple interpretations. Under Utah law, “[t]he statement or charge in question must not be susceptible to any meaning other than one falling plainly and unambiguously within any of the four categories … If it is capable of two interpretations … ‘it cannot be slander per se.’” Johnson v. Comm. Nursing Servs., 985 F. Supp. 1321, 1328 (D. Utah 1997) (quoting Allred, 590 P.2d at 321).

Though MVP likely will claim that both the School Board Statement and the Facebook Post accuse MVP of being untruthful or misleading the public by “falsifying” or “fabricating” success data, Dillard’s statements do not accuse MVP of doing any such thing. Indeed, his statements do not accuse any party of such conduct and, as a result, can be interpreted as attributing that conduct to some party other than MVP. Moreover, the School Board Statement suggests that MVP’s success data has been “exaggerated or in some cases possibly even fabricated. Because that statement suggests only that it may have been fabricated, it is susceptible to multiple interpretations that do not fall into the four per se categories. See Progress Solar Solutions, LLC v. Fire Protection, Inc., No. 5:17-CV-152-D, 2019 WL 3544072, at *4 (E.D.N.C. Aug. 1, 2019) (holding that statement was not defamatory per se because statement that company only “may” have infringed patents was not susceptible to only one interpretation). Indeed, the statement could be interpreted as suggesting only that MVP’s data has been exaggerated, which, as discussed previously, is not capable of defamatory meaning.

Because MVP has not alleged defamation per se, it is required to plead and prove special damages with requisite specificity, Baum, 667 P.2d at 42-43; Jacob, 2009 UT 37, ¶¶ 26-29, 31, which, as discussed above, it has not done.


IV. THE STATEMENTS ARE PRIVILEGED.

Even if MVP had adequately pled the elements of a defamation claim based on the Statements, its claim would still fail. Dillard’s efforts to safeguard the best interests, well-being, and success of his son and other similarly situated students by voicing and publishing his concerns about MVP’s program are privileged under several well-recognized privilege doctrines, including the public interest privilege, the family relationships privilege, and the official proceedings privilege. MVP has not pled any facts that could support a finding of malice necessary to overcome any of those privileges. Whether these privileges apply is a question of law for this Court. Russell v. Thomson Newspapers Inc., 842 P.2d 896, 900 (Utah 1992); Brehany v. Nordstrom, Inc., 812 P.2d 49, 58 (Utah 1991). So, too, is the question of whether MVP’s allegations are sufficient to support a finding of malice. Russell, 842 P.2d at 905.

A. THE PUBLIC INTEREST PRIVILEGE APPLIES.

First, the statements are protected by Utah’s public interest privilege, which is designed to promote uninhibited public discourse by providing a qualified privilege for publications on matters of public interest. See Utah Code §§ 45-2-3(5), 45-2-10(4). The privilege applies if “the publication ... of the matter complained of was for the public benefit.” itself does not define the types of publications that are for the “public benefit,” the Utah Supreme Court has made clear that publications concerning public health and safety, the functioning of governmental bodies, officials, or public institutions or the expenditure of public funds fall within the ambit of the privilege. See, e.g., Jacob, 2009 UT 37, ¶¶ 24-25; Seegmiller v. KSL, Inc., 626 P.2d 968, 978 (Utah 1981); Cox, 761 P.2d at 559 n.3 (recognizing public interest qualified privilege).

Here, there is little question that the Statements fall within the ambit of the public interest privilege. Dillard’s Statements directly concern the efficacy of an educational method being used to instruct children and whether that method is having a negative impact on student learning and success. This is obviously a problem affecting schools, and Utah courts recognize that “‘[i]t seems clear ... that problems affecting our schools are matters in which the public has a legitimate interest.’” Seegmiller, 626 P.2d at 978 (quoting Ogden Bus Lines v. KSL, Inc., 551 P.2d 222, 224 (Utah 1976)).

Moreover, the statements also concern the expenditure of public funds (payment for the educational program or method) and the functioning of governmental bodies and officials and public institutions (Wake County school district and other school districts considering using the program). Because the Statements concern these matters of public interest, the conditional privilege applies. See, e.g., Jacob, 2009 UT 37, ¶¶ 24-25.

B. THE FAMILY RELATIONSHIP PRIVILEGE APPLIES.

Dillard’s Statements also are privileged under Utah’s conditional privilege for family relationships. O’Connor, 2007 UT 58, ¶ 34. This privilege protects statements where “the circumstances induce a correct or reasonable belief that (a) there is information that affects the well-being of a member of the immediate family of the publisher, and (b) the recipient’s knowledge of the defamatory matter will be of service in the lawful protection of the well-being of the member of the family.” Id. ¶ 36 (quoting Restatement (Second) of Torts § 597). (Footnote 22) In O’Connor, for example, the court determined that parents “possess a legitimate interest in the affairs of the basketball team of such a degree” as to require that their statements criticizing the coach receive “the ‘breathing space’ afforded by [the family relationship privilege.]” Id. ¶ 37.

Dillard’s Statements also deserve such breathing space. The circumstances of those Statements induce a correct and reasonable belief that Dillard was relating information that affected Dillard’s child and that publication of that information to school board members and other parents (Footnote 23) would serve to protect the well-being of that child, including by inducing the school board and other parents to inquire into MVP’s program and support a change in curriculum. Under these circumstances, Dillard’s comments were privileged.

C. THE OFFICIAL PROCEEDINGS PRIVILEGE APPLIES.

Finally, certain of Dillard’s statements are privileged pursuant to the official proceedings privilege. This privilege protects the “publication or broadcast of or any statement made in any legislative or judicial proceeding, or in any other official proceeding authorized by law.” Utah Code. § 45-2-3(2). Such privilege is “designed to provide the utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate wrongdoing.” Lee, 37 Cal.Rptr.3d at 379. As a result, the official proceedings privilege applies to “a variety of public proceedings.” Russell, 842 P.2d at 901 n.11 (citing case where court found statements to school board were subject to official proceedings privilege). Moreover, the privilege extends not just to statements made during a proceeding, but also to “communications to an official agency intended to induce the agency to initiate action” since those are deemed part of the official proceeding. Lee, 37 Cal.Rptr.3d at 370; Rykowsky v. Dickinson Pub. Sch. Dist. No. 1, 508 N.W.2d 348, 351 (N.D. 1993). Crucially for this dispute, the official proceedings privilege has been applied across the country to statements made in school board meetings or to school boards. See, e.g., Stablein v. Schuster, 455 N.W.2d 315 (Mich. Ct. App. 1990) (“Plaintiffs’ claim that the school board meeting is not a public and official proceeding has no merit.”); Rykowsky, 508 N.W.2d at 351 (“School board meetings have been recognized as ‘official proceedings authorized by law’ within the meaning of [similar statute]”); Lee, 37 Cal.Rptr.3d at 379 (communications with school board privileged); see also Lovett v. Capital Principles, LLC, 686 S.E.2d 411, 414 (Ga. Ct. App. 2009) (“[S]chool Board’s consideration or review of the issues of how to implement the computer program …was an ‘official proceeding authorized by law’ within the meaning of the anti-SLAPP statute…”).

The official proceedings privilege thus applies at least to the School Board Statement, the Facebook Post, and the Ineffective Statement. All three involve direct communications with school boards either during or in connection with a school board proceeding or in an attempt to induce such a proceeding.

D. MVP CANNOT OVERCOME THESE PRIVILEGES.

MVP can overcome these privileges only by showing that Dillard acted with either common law malice or actual malice in publishing the statements at issue. See Russell, 842 P.2d at 905 & n.28 (common law malice); Ferguson v. Williams & Hunt, Inc., 2009 UT 49, ¶ 28, 221 P.3d 205 (actual malice). “Whether the evidence ... is sufficient to support a finding of malice is a question of law.” Russell, 842 P.2d at 905.

MVP cannot satisfy this standard because its Complaint contains no facts whatsoever that Dillard acted with either common law or actual malice. MVP alleges only in conclusory fashion that “Dillard knew these statements were false and made these statements with the intent to harm MVP” and “Dillard knew these statements were false or acted with reckless disregard for the truthfulness of these statements” and “intended to harm MVP.” [Compl. ¶¶ 28, 36-37.] The Complaint does not allege any facts supporting such conclusory allegations. In the absence of such facts, MVP cannot state a claim for defamation. See Combes v. Montgomery Ward & Co., 228 P.2d 272, 277 (Utah 1951); Russell, 842 P.2d at 905 n.28; Sheehan v. Anderson, No. 98–5516, 2000 WL 288116, at *3 (E.D. Pa. Mar. 17, 2000) (“Simply asserting that publication is made with malice is not sufficient.”); Miketic v. Baron, 675 A.2d 324, 330-31 (Pa. Super. Ct. 1996) (dismissing complaint for failure to “demonstrate facts which would support a finding that the publication was a result of malice or improper purpose,” and requiring factual basis for state of mind ascribed to defendants).


V. MVP’S TORTIOUS INTERFERENCE CLAIM FAILS AS A MATTER OF LAW.

Finally, MVP’s tortious interference claim is premised entirely on allegedly defamatory speech that supposedly interfered with MVP’s business relationship. In other words, the gravamen of MVP’s tortious interference claim is allegedly injurious speech.

It is well settled that a tortious interference claim predicated on allegedly injurious speech, like MVP’s here, must surmount all of the constitutional and common-law limitations and privileges applicable to a defamation claim. This requirement is in addition to satisfying each of the separate elements for tortious interference, including improper means. See Sack on Defamation § 13:4 (“As has been the case with invasion of privacy, ... there is substantial recent authority that principles and limitations derived from libel law also apply to [intentional interference] torts when the gravamen of the claim is an allegedly false and injurious statement.”). If the law were otherwise, a plaintiff could simply relabel a nonactionable defamation claim as “tortious interference” and thereby “evade the constitutional, statutory, and common-law strictures on causes of action for defamation.” Id.; see also, e.g., Blatty v. New York Times Co., 728 P.2d 1177, 1183 (Cal. 1986) (“First Amendment limitations are applicable to all claims, of whatever label, whose gravamen is the alleged injurious falsehood of a statement,” because such limitations “do not concern matters peculiar to [defamation] actions but broadly protect free-expression and free-press values.”); TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1200-01 (10th Cir. 2007) (“If the alleged impropriety ... is an allegedly defamatory statement, then the interference claim must fail if the statement is not an actionable defamation.... The interests served by [the protections afforded speech from a defamation claim] would be undermined if the common law recognized a different tort based on the same speech.”). (Footnote 24)

Indeed, Utah courts and others applying Utah law have repeatedly applied defamation limitations and privileges to tortious interference and other tort claims where the gravamen of such claims is injurious speech. See, e.g., Price v. Armour, 949 P.2d 1251, 1258 (Utah 1997) (applying judicial proceeding privilege to tortious interference claims); Agee v. Morton Thiokol, Inc., 977 F.2d 595, at *2 (10th Cir. 1992) (“Utah courts have recognized a conditional privilege ... in both defamation cases, and intentional interference with prospective economic relations cases.” (citation omitted)) (unpublished); Watkins v. Gen. Refractories Co., 805 F. Supp. 911, 918 (D. Utah 1992) (applying Utah’s conditional publisher’s interest privilege to tortious interference claim); Searle v. Johnson, 646 P.2d 682, 685, 689 (Utah 1982) (First Amendment privilege to petition government under Noerr-Pennington doctrine applies to tortious interference claims); Bates v. Utah Ass’n of Realtors, 2013 UT App 34, ¶ 3, 297 P.3d 49 (“To ensure that claims with defamation underpinnings are not recast and cleverly titled ... to sidestep the one-year limitations period [for defamation] ... ‘the statute of limitations for defamation governs claims based on the same operative facts that would support a defamation action.’” (quoting Jensen, 2005 UT 81, ¶ 53)).

The viability of MVP’s tortious interference claim thus depends on whether the speech on which it is based is actionable. And because none of the Statements at issue are actionable as defamation, MVP’s tortious interference claim fails as a matter of law.

CONCLUSION

For all of the foregoing reasons, this Court should grant Dillard’s Motion and dismiss MVP’s claims with prejudice.

RESPECTFULLY SUBMITTED this 9th day of September, 2019.

PARR BROWN GEE & LOVELESS, P.C.

/s/ Jeffrey J. Hunt

Jeffrey J. Hunt

David C. Reymann

Sara Meg Nielson

Attorneys for Defendant Blain Dillard

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 9th day of September, 2019, I filed the foregoing MOTION FOR JUDGMENT ON THE PLEADINGS via the court’s electronic filing system, which served the following:

Joseph Shapiro

STRONG &HANNI, PC

102 South 200 East, Suite 800

Salt Lake City, Utah 84111

jshapiro@strongandhanni.com

/s/ Jeffrey J. Hunt

Footnotes:

1 WCPSS refers to Wake County Public School System.

2 The Math Performance Statement is also available at https://wakemvp.blogspot.com/2019/03/mvp-eradicates-wcpsss-performance-lead.html

3 The Parody Post is also available at https://wakemvp.blogspot.com/2019/03/ready-set-no-story-of-miranda-and-neha.html.

4 The April 3, 2019 blog is also available at https://wakemvp.blogspot.com/2019/04/independent-surveys-of-wcpss-teachers.html.

5 Dillard’s full statement at the April 23, 2019 school board meeting can be accessed at https://www.youtube.com/watch?v=Sc_Ev3ZKpi4. Dillard’s comments begin at the 1h:25m mark.

6 Exhibits A-E and the hyperlinked video of the April 23, 2019 school board meeting are properly before this Court on a motion for judgment on the pleadings because such are referenced in and central to MVP’s complaint. See Oakwood Village LLC v. Albertsons, Inc., 2004 UT 101, ¶¶ 12-15, 104 P.3d 1226 (“[If] a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.” (internal quotation marks omitted)).

7 The tort of injurious falsehood encompasses two related claims known at common law as “slander of title” and “trade libel.” “Slander of title has traditionally addressed statements casting doubt upon the fact or the extent of a plaintiff’s ownership of property, most often real estate.” 2 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 13:1.1 (4th ed. 2016) (hereinafter, “Sack on Defamation”). “The tort of disparagement of quality, or ‘trade libel,’ developed from slander of title. It provides compensation for false derogatory statements about the quality, rather than the ownership, of property, most often a product or service being sold.” Id.

8 Though the School Board Statement and the Facebook Post mention “fabricated” and “falsified” data, respectively, nothing in those statements accuses MVP of such fabrication or falsification. As a result and as it concerns MVP, both statements merely suggest that MVP’s program is not as successful as its success data seems to show. This amounts to nothing more than a complaint about the quality and efficacy of MVP’s products and services and any claim based on those statements is one for injurious falsehood, not defamation. Even if that were not the case, alleging that a company misstates the effectiveness or the success of its product is not defamatory, as the court found in Direct Import I. 538 P.2d at 1041-42 (statement calling into question company’s statement that testing on product was going well was injurious falsehood).

9 This conclusion does not diminish the First Amendment protections attendant to claims based on speech, however, such as the protections requiring exacting and non-deferential review. “There is no reason to accord lessened protection because the plaintiff’s claim is denominated ‘disparagement,’ ‘trade libel,’ or ‘injurious falsehood’ rather than ‘libel’ or ‘slander’ or because the injury is to economic interests rather than to personal reputation. Since only economic injury and not injury to reputation and psyche is at issue, perhaps the balance should tip even further to the side of free expression.” Sack on Defamation § 13:1.8; see SCO Grp., Inc. v. Novell, Inc., 692 F. Supp. 2d 1287, 1293 (D. Utah 2010) (“[T]he Court finds that slander of title claims are subject to the First Amendment.”); cf. Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848 (10th Cir. 1999) (applying First Amendment opinion protection to injurious falsehood claim under Colorado law); Bose Corp. v. Consumers Union of United States, Inc., 508 F. Supp. 1249 (D. Mass 1981) (applying First Amendment actual malice standard to product disparagement claim), rev’d on other grounds, 692 F.2d 189 (1st Cir. 1982), aff’d, 466 U.S. 485 (1984).

10 The other two elements of an injurious falsehood claim are (1) publication of a disparaging statement regarding the plaintiff’s goods or services, and (2) falsity. Dillon, 2014 UT 14, ¶ 36. MVP cannot satisfy these two elements either. But because they are essentially the same as the defamatory meaning and falsity elements for a defamation claim, Dillard discusses them with the defamation analysis below to avoid repetition.

11 Dillon resolved several decades of confusion on this “malice” element. Earlier courts had inconsistently suggested that malice for purposes of injurious falsehood could consist of ill will, or that a plaintiff could allege that the defendant objectively “should have known” of the falsity of certain statements. Compare Direct Import II, 572 P.2d at 696 (requiring “actual malice” for disparagement of quality claim) with First Sec. Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253, 1257 (Utah 1989) (appearing to allow a showing of malice from proof “that the wrong was done with an intent to injure, vex, or annoy”); see also Bass, 761 P.2d at 568 n.1 (“We forgo defining the term ‘malice’ in this opinion. We note, however, that the concept is not altogether clear under Utah law.” (collecting cases)).

12 MVP does something similar in its allegations supporting its tortious interference claim. [Compl. ¶¶ 40-44.] Though MVP identifies Guilford Public School System as the subject of Dillard’s alleged interference, these allegations are not enough to allege special damages, even if they applied to MVP’s defamation claim. Like its previous allegations, MVP’s tortious interference allegations list only possible harms separated by “and/or” and never identifies which, if any, actually occurred. [Compl. ¶ 43.] And, again, MVP makes no attempt to quantify losses it experienced from Dillard’s alleged interference.

(footnotes 13-21 are on respective sub pages)

22 Even if Dillard’s comments were not in service in the lawful protection of his own child, they would be privileged in service in the lawful protection of other children in his own school district and those in other school districts using or considering using MVP’s curriculum and methods. See O’Connor, 2007 UT 58, ¶ 34. The scope of the privilege extends to information that affects and will be in service of the lawful protection of the well-being of an immediate family member of the recipient or of a third person and where the recipient of the information “is a person to whom its publication is otherwise within generally accepted standards of decent conduct.” Id. In providing information about MVP to parents of other students and to members of school boards and school districts making decisions about MVP’s program, Dillard was well within this privilege. See id. ¶ 37 (“[The privilege] does protect those defendants who are not immediate family members of women on the team.”).

23 See Lee v. Fick, 37 Cal.Rptr.3d 375, 380 (Cal. Ct. App. 2005) (“In order to be effective in pressing their complaints to school authorities, parents must be free to communicate with each other without fear of liability.”).

24 These principles apply to the defamation limitations and privileges at issue in this case, including: (1) defamatory meaning, Harman v. Heartland Food Co., 614 N.W.2d 236, 241-42 (Minn. Ct. App. 2000) (statement incapable of conveying defamatory meaning cannot support tortious interference claim); (2) opinion, Jefferson Cty. Sch. Dist. No. R-1, 175 F.3d at 856-58 (nonactionable expressions of opinion cannot support tortious interference claim); (3) truth, Redco Corp. v. CBS, Inc., 758 F.2d 970, 972-73 (3d Cir. 1985) (true facts cannot support tortious interference claim); and (4) conditional privilege, Snyder v. Am. Kennel Club, 402 F. App’x 397, 402 (10th Cir. 2010) (“Occasions privileged under the law of defamation are also occasions in which interference with contractual relations may be considered justified or privileged.” (internal quotations omitted)).