JB & Assocs. v. Nebraska Cancer Coalition
303 Neb. 855
Neb.2019Background
- Appellants (JB & Associates and other tanning salons) sued Nebraska Cancer Coalition (NCC) and others alleging defamation and product disparagement under Nebraska’s UDTPA based on NCC’s statewide "The Bed is Dead" campaign warning about the dangers of indoor tanning.
- NCC published numerous statements on its website and in outreach (e.g., "Tanning Causes More Cancers than Cigarettes," statistics about melanoma risks, and warnings about tanning beds) and distributed materials to schools and the public statewide.
- Appellants alleged NCC’s statements harmed their businesses; some employees averred customers asked about salon safety after visiting NCC’s site, but there was no evidence customers said the statements referred specifically to appellants.
- Defendants moved for summary judgment arguing the statements were general industry-wide warnings not "of and concerning" appellants or their specific goods/services and thus not actionable under defamation or the UDTPA product-disparagement provision.
- The district court granted summary judgment for defendants, finding (1) appellants’ group-libel theory failed because recipients would not reasonably understand the statements to refer specifically to appellants, and (2) UDTPA § 87-302(a)(9) requires statements be "of and concerning" a claimant’s goods/services (i.e., more than general industry-wide allegations).
- The Nebraska Supreme Court affirmed: no genuine dispute of material fact on defamation; and UDTPA product-disparagement requires the "of and concerning" showing, which appellants failed to meet.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NCC's statements were "of and concerning" appellants for defamation | Statements and surrounding context (campaign targeting Nebraska, school outreach) meant readers would understand they referred to appellants | Statements were general warnings about tanning/tanning beds nationwide and did not name or directly reference appellants | Not of and concerning appellants; summary judgment for defendants affirmed |
| Whether UDTPA § 87-302(a)(9) requires reference to a specific product/service of the claimant | § 87-302(a)(9) requires only disparagement of another's goods/services; no specificity requirement in text | "Of another" imports an "of and concerning" requirement—statements must be specific enough to identify claimant's goods/services | Court held UDTPA requires statements be "of and concerning" claimant's goods/services; more than industry-wide allegations necessary |
| Whether appellants raised genuine issues of material fact to avoid summary judgment on product disparagement | Affidavits showing customers asked about salons after viewing site; appellants' market share in Omaha/Lincoln meant statements would be understood to target them | Internal documents cited by appellants were not available to public; published content did not identify appellants; campaign was statewide and applied to many tanning options | No genuine dispute; published statements were general and not reasonably understood to refer to appellants; summary judgment affirmed |
| Whether consumer outreach (dermatologist visits, school materials) made statements actionable against local salons | Outreach in Omaha schools and promotions could reasonably be interpreted as targeting local salons | Outreach did not identify appellants or their locations; materials were statewide and applicable beyond appellants' market | Outreach insufficient to create an "of and concerning" issue; summary judgment proper |
Key Cases Cited
- Rosenblatt v. Baer, 383 U.S. 75 (statement must be defamatory "of and concerning" claimant)
- New York Times Co. v. Sullivan, 376 U.S. 254 (constitutional principles governing defamation and public-figure fault requirements)
- Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262 (7th Cir.) (UDTPA-like disparagement claim requires more than general industry-wide statements)
- Steinhausen v. HomeServices of Neb., 289 Neb. 927 (defamation elements under Nebraska law)
- Estermann v. Bose, 296 Neb. 228 (standards for appellate review of legal questions)
- Matheson v. Stork, 239 Neb. 547 (consideration of audience and publication circumstances in defamation)
- Moats v. Republican Party of Neb., 281 Neb. 411 (context and audience relevant to whether statement refers to claimant)
- Deaver v. Hinel, 223 Neb. 529 (discussion of the "of and concerning" requirement under Nebraska defamation law)