JB & Assocs. v. Nebraska Cancer Coalition
932 N.W.2d 71
| Neb. | 2019Background
- Appellants: JB & Associates and several tanning salons alleging defamation and product disparagement under Nebraska's UDTPA based on a statewide anti-tanning campaign.
- Appellees: Nebraska Cancer Coalition (NCC) operated "The Bed is Dead" website and related materials warning that indoor tanning and tanning beds increase skin-cancer risk and urging public education.
- NCC published broad, science‑based statements about tanning risks (e.g., tanning beds cause skin cancer; indoor tanning increases melanoma risk) and promoted the site statewide and in schools.
- Appellants claimed customers asked about their salons after visiting the site and sued for deceptive trade practices/product disparagement (Neb. Rev. Stat. §87-302(a)(9)) and defamation, alleging statements were "of and concerning" their businesses.
- The district court granted summary judgment for appellees, finding NCC's statements were general industry‑wide assertions not specifically referencing appellants or their products/services; plaintiffs failed the "of and concerning" requirement for both defamation and UDTPA product disparagement.
- Nebraska Supreme Court affirmed: held (1) defamation failed because statements were not shown to be understood as referring specifically to appellants; (2) UDTPA disparagement requires statements to be "of and concerning" a claimant’s goods or services (more than general industry‑wide allegations).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NCC's statements satisfied the defamation "of and concerning" requirement for a group libel claim | Statements and affidavits show customers linked the website to appellants, so recipients understood it referred to appellants | Statements targeted tanning industry/devices generically; did not name or specifically refer to appellants | Not satisfied — no genuine factual dispute; statements were general and not reasonably understood to refer specifically to appellants |
| Whether §87-302(a)(9) UDTPA disparagement requires reference to claimant's specific goods/services | Statute's plain text requires only disparagement of another's goods/services; no specificity requirement | "Of another" means statements must be tied to claimant's specific goods/services, not general industry claims | Court: UDTPA requires statements be "of and concerning" claimant's goods/services; more than general industry‑wide allegations required |
| Whether there were genuine issues of material fact precluding summary judgment on disparagement and defamation claims | Affidavits and internal documents create disputes showing targeted campaign and actual customer impact | Public materials and campaign were statewide, generic, and not limited to appellants; internal docs not available to public/readers | No genuine dispute; summary judgment proper — plaintiffs failed to show statements referred to their specific businesses |
| Whether evidence of market share supports that industry statements effectively targeted appellants | Appellants control large share of local markets, so generic statements effectively refer to them | Campaign was statewide and applicable to many tanning contexts beyond appellants’ salons; market‑share argument insufficient | Market‑share evidence insufficient to transform general industry statements into ones "of and concerning" appellants |
Key Cases Cited
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (First Amendment standards for defamation and requisite fault principles)
- Rosenblatt v. Baer, 383 U.S. 75 (U.S. 1966) (defamation standards and the "of and concerning" formulation)
- Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262 (7th Cir. 1983) (Uniform Deceptive Trade Practices Act disparagement requires more than general industry‑wide statements)
- Auvil v. CBS 60 Minutes, 800 F. Supp. 928 (E.D. Wash. 1992) (circumstances and accompanying imagery can make general statements sufficiently referential to a regional producer)