519 F.Supp.3d 893
D. Colo.2021Background
- This consolidated action (No. 18-cv-1559 & No. 18-cv-1797) pits two home‑inspection associations (ASHI and EBPHI) against InterNACHI and its founder Nick Gromicko over statements Gromicko posted on InterNACHI’s public forum.
- EBPHI administers the National Home Inspectors Examination (NHIE); Gromicko posted that the NHIE is "not psychometrically valid" and offered to sue and prove it in court. EBPHI sued for defamation, trade libel/commercial disparagement, tortious interference, and CCPA violations.
- ASHI is a competing membership association; Gromicko posted that ASHI was "taken over by NAMBLA" (and other lewd hyperbole). ASHI sued for defamation, trade libel/commercial disparagement, and CCPA violations; InterNACHI counterclaimed under the Lanham Act and for tortious interference.
- The court struck certain hearsay (Wikipedia and an unauthenticated website), declined to consider a post‑complaint "Dahmer" comment for summary judgment, and reserved a Daubert challenge to an expert for later consideration.
- Rulings on summary judgment: NAMBLA comment (ASHI) not actionable — defendants granted summary judgment on that defamation and related disparagement/CCPA claims; NHIE comment (EBPHI) found to involve public concern but raises triable issues (actual malice, falsity, damages) and is defamatory per se — summary judgment denied for EBPHI on defamation/disparagement; EBPHI’s tortious‑interference claim failed for lack of proof of specific prospective contracts; both plaintiffs’ CCPA claims dismissed for insufficient public impact; InterNACHI’s Lanham Act counterclaim (against ASHI tagline) was dismissed for lack of causation/damage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NAMBLA post about ASHI is defamatory | ASHI: the statement falsely associates it with NAMBLA and harms reputation | Gromicko: statement is rhetorical hyperbole/parody, not factual | Court: statement is rhetorical hyperbole; not defamatory as a matter of law; ASHI claims dismissed |
| Whether NHIE comment is defamatory | EBPHI: statement that NHIE is not psychometrically valid is a false, business‑related factual attack | Gromicko: statement is opinion/public concern and constitutionally privileged; no malice/damages | Court: statement involves public concern but implies verifiable fact, is defamatory per se; triable issues of actual malice, falsity, and damages remain; summary judgment denied |
| Whether EBPHI showed actual malice | EBPHI: Gromicko knew psychometric standards and recklessly disregarded truth; evidence supports malice | Defendants: no clear evidence of knowledge or reckless disregard | Court: record supports a reasonable jury could find actual malice; issue for jury |
| Tortious interference (EBPHI v. InterNACHI) | EBPHI: NHIE disparagement caused people not to take exam, interfering with business expectancy | InterNACHI: competitor privilege applies unless wrongful means shown; injury speculative | Court: competitor privilege may be defeated by wrongful means (defamation) but EBPHI failed to show specific prospective contracts — claim dismissed |
| CCPA claims (both plaintiffs) | Plaintiffs: defendants’ statements were deceptive trade practices harming public consumers | Defendants: statements are private attacks; no significant public impact or cognizable public injury | Court: no significant public impact shown; CCPA claims dismissed |
| Lanham Act counterclaim (InterNACHI v. ASHI tagline) | InterNACHI: ASHI tagline is false advertising that diverted members/customers | ASHI: tagline is not commercial advertising or caused InterNACHI injury | Court: tagline is commercial speech but InterNACHI failed to show causation/damages; counterclaim dismissed |
Key Cases Cited
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (statements that imply provable false facts can be actionable)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (First Amendment limits on defamation law)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (public‑figure standard and protection for free debate)
- Mink v. Knox, 613 F.3d 995 (10th Cir. 2010) (rhetorical hyperbole and parody are nonactionable)
- Spacecon Specialty Contractors, LLC v. Bensinger, 713 F.3d 1028 (10th Cir. 2013) (public‑concern analysis; actual malice standard)
- Burns v. McGraw‑Hill Broadcasting Co., 659 P.2d 1351 (Colo. 1983) (factors for distinguishing fact vs. opinion)
- Keohane v. Stewart, 882 P.2d 1293 (Colo. 1994) (reasonable‑person test for defamatory meaning)
- Amoco Oil Co. v. Ervin, 908 P.2d 493 (Colo. 1995) (narrow construction of "wrongful means" in tortious interference)
- Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) (causation standard in Lanham Act claims)
- Procter & Gamble Co. v. Haugen, 222 F.3d 1262 (10th Cir. 2000) (test for what constitutes commercial advertising under Lanham Act)