MVP characterizes the statements at issue (the “Statements”) as:
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.
E. THE INEFFECTIVE STATEMENT IS NEITHER DEFAMATORY NOR FALSE.
MVP’s fifth statement supporting its defamation claim is the Ineffective Statement, an excerpt from a complaint document prepared and submitted by parents to the Wake County school district (“Parent Complaint”). [Compl. ¶ 24.] The excerpt MVP identifies (just one sentence from a 41-page document), however, is edited to suggest that the statement “MVP is not effective” was based only on testimonies from teachers at American Fork High School. The actual statement is materially different:
Based on testimonies from teachers at American Fork High School in Utah who teach former students of MVP founding owner and curriculum author Travis Lemon (See EXHIBIT E: Conversations/Interactions with American Fork High School Math Teachers) and Testimonies from WCPSS teachers (See EXHIBIT F: Testimonies from WCPSS Teachers About MVP Issues), MVP is not effective.”
See Exhibit D, p.7 (emphasis added). The document goes on, in the exhibits referenced in the Statement, to reproduce the “testimonies” from both sets of teachers. This is the information Court must analyze to determine whether MVP’s claim can survive this Motion.
1. The Ineffective Statement is Not Capable of Conveying Defamatory Meaning and is Nonactionable Opinion.
Under the defamatory meaning and opinion standards already explained and given that the statement was made in a complaint document submitted to the Wake County school board, see Section II.A.1, supra, the Ineffective Statement is not actionable as defamation. It does not expose MVP to public hatred, contempt, or ridicule and no reasonable reader would understand it as expressing verifiable facts rather than opinion based on disclosed facts. Moreover, calling a company’s product “not effective” is the kind of imprecise language that has no definite and fixed meaning and that is not capable of verification. See Hogan, 762 F.3d at 1106-07 (statements that contractor was terminated for “performance issues” and had exhibited “erratic behavior” were too vague and subjective to be defamatory); Yates v. Iowa West Racing Ass’n, 721 N.W.2d 762, 773 (Iowa 2006) (references to dog kennel as “substandard and poor performers” did not have precise and verifiable meaning); see also Direct Import I, 538 P.2d at 1041-42 (statements suggesting that company’s product was not effective were not defamatory). As a result, it cannot support a claim for defamation.
2. MVP Has Not Pled Facts Showing the Ineffective Statement is False.
MVP’s claim based on the Ineffective Statement also fails because MVP has not adequately pled the falsity of the statement, which is its burden. See Section II.A.2, supra. True, MVP uncharacteristically offers more here than a mere conclusory allegation that the statement is false. It alleges that the statement is false because Teacher D, an American Fork High School teacher that expressed dissatisfaction with MVP, later retracted his comments. [Compl. ¶¶ 24-25.] But contrary to MVP’s assertions, (Footnote 19) Teacher D was not the only American Fork High School teacher dissatisfied with MVP’s program. The Parent Complaint reports Teacher A as stating “From my brief interactions with [MVP’s program], we as a department saw many issues with it and haven’t ever pushed for it at our school.” See Exhibit D, p.22. Thus, MVP has not pled facts showing that Dillard’s actual statement—that testimonials from American Fork High School and Wake County teachers suggest that MVP ineffective—is false. MVP’s claim based on the Ineffective Statement should, accordingly, be dismissed.
19 This Court need not accept as true allegations by MVP that contradict the content of documents before the Court, including the Parent Complaint.