United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RODNEY W. SIPPEL, District Judge.
After charity Others First hired Rick Frazier's company to run its car donation program, the Better Business Bureau issued a release warning Missouri consumers to exercise "caution" when dealing with them because Frazier had been "criticized for alleged improprieties in running similar programs." Frazier is a for-profit fundraiser who has been accused of improprieties while operating car donation programs by at least two other charities. The release reports these facts, along with the BBB president's statement that "Frazier's past problems are reason to be cautious about his newest venture." The release also points out that another charity was satisfied with Frazier's operation of its car donation program, that Frazier had never been a board member of Others First, and that both Frazier and Others First denied that Frazier was the charity's founder. The release goes on to provide consumers with tips on how to donate a car to charity. The release never tells consumers not to donate to Others First and never states that Others First has been accused of improprieties. It is undisputed that Others First hired Frazier's company to run its car charity program and that Frazier was accused of improprieties while managing other charitable car donation programs. Despite this, Others First filed state law claims against the BBB for tortious interference with business expectancy and injurious falsehood for the BBB's release, claiming that the release made false statements about Others First. The BBB immediately filed motions to dismiss and/or for summary judgment, contending that it was entitled to judgment as a matter of law because the release is true and contains non-actionable opinions. Others First has opposed both motions. Because the issues in both motions are the same and both parties rely on matters outside the pleadings, I will treat the motions as one for summary judgment. The issues in this case are straight-forward and there are no material facts genuinely in dispute, so summary judgment is appropriate in this case despite the absence of discovery as Fed.R.Civ.P. 1 requires the "just, speedy, and inexpensive determination of every action." Based on my review of the relevant undisputed facts and the applicable Missouri law under the standards governing summary judgment, I conclude that no reasonable fact-finder could ever find that the BBB stated anything other than the truth and its seemingly well-informed opinions about Others First. To the extent Other First complains about statements made by the BBB about Frazier, it cannot bring such claims. As such, the BBB is entitled to judgment as a matter of law on all counts of the amended complaint for the reasons set out below.
Standards Governing Summary Judgment
The standards for summary judgment are well settled. In ruling on summary judgment, the Court views the facts and inferences therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party has the burden to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in its pleadings but must set forth by affidavit or other evidence specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e). At the summary judgment stage, I will not weigh the evidence and decide the truth of the matter, but rather I need only determine if there is a genuine issue for trial. Anderson, 477 U.S. at 249; ASi Industries GmbH v. MEMC Electronic Materials, Inc., 2008 WL 413819, *1 (E.D. Mo. Feb. 13, 2008).
Undisputed Background Facts
Others First solicits car donations nationwide under assumed names including Cars Helping Veterans, Cars Fighting Cancer, Cars to Help Kids, Cars Helping Pets, Cars for Research, and Cars for Christ. After learning that Others First was soliciting in St. Louis, the BBB investigated the charity and issued the release at issue here. The release is dated August 2, 2011, and attached as Exhibit B to the amended complaint [#6-2]. It is entitled "BBB Urges Caution On Others First Car Donation Programs" and states:
A national charity that is seeking car donations in the St. Louis area has ties to a Detroit area businessman who has been criticized for alleged improprieties in running similar programs, the Better Business Bureau (BBB) warns.
The BBB advises caution when dealing with Rick Frazier and the charity Others First. Others First is a two-year-old nonprofit that raises money for causes, such as disabled and homeless veterans, cancer research, children and animals.
In recent months, Others First has mailed solicitations to St. Louis area consumers on behalf of an affiliated charity, Cars Helping Veterans (www.carshelpingveterans.org). Advertising flyers mailed throughout the bi-state area say the vehicle donations go to help veterans of the U.S. Armed Forces.
Michelle L. Corey, BBB President and CEO, said the BBB is concerned about Frazier's controversial history with other charitable vehicle donation programs. "Mr. Frazier's past problems are reason to be cautious about his newest venture, " she said.
Corey also said it appears that a former associate of Frazier, and perhaps even Frazier himself, may have potential conflicts of interest over their involvement in the Others First donation program.
Frazier and former co-worker Maurice E. Banks recently signed potentially lucrative contracts to run vehicle donation programs for the charity. Frazier is described in the media and on the website of an Others First charity as the charity's founder, although he denies that role. Banks is the previous treasurer of Others First.
Frazier's Charity Funding and Banks' Charity Car Brokers are named as fundraising consultants for Others First in several states. Contracts in Illinois and North Carolina show Others First has agreed to pay Banks and Charity Car Brokers 30 percent of the net profits from the program.
Frazier's problems in the charity arena have been the subject of news reports. The Detroit Free Press reported in 1998 that the Mother Waddles Perpetual Mission charity in Detroit accused Frazier of several improprieties in that donation program. The newspaper also raised questions about Frazier's involvement with the Charity Motors donation program in Detroit.
Last year, the Virginia-based Military Order of the Purple Heart Foundation alleged in a court suit that an audit found widespread problems with Frazier's role in that program, including self-dealing, illegal practices and destruction of incriminating records. Frazier denied the claims.
About two years ago, Frazier began operating a car donation program for Vietnam Veterans of America in about a dozen states. That organization has ...