Parent Rights for All

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)