JB & Assocs. v. Nebraska Cancer Coalition
932 N.W.2d 71
Neb.2019Background
- Appellants (JB & Associates and other tanning salons) alleged NCC’s statewide “The Bed is Dead” campaign (website, school outreach, publications, social media) made numerous statements linking indoor tanning to increased melanoma risk and other harms.
- Appellants claimed the campaign led customers to question or avoid their salons and filed suit alleging defamation and product disparagement/UDTPA violations (filed 2015).
- NCC’s published statements attacked indoor tanning and tanning devices generally; they did not name appellants or specific salon locations or products.
- The district court granted summary judgment for NCC, finding (1) appellants’ group-libel theory failed because the statements were not “of and concerning” appellants, and (2) the UDTPA product disparagement provision requires statements to be “of and concerning” a claimant’s specific goods or services.
- Appellants appealed, arguing the court ignored evidence (customer inquiries and targeted outreach) and misread the UDTPA to require reference to a specific product.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NCC’s statements were “of and concerning” appellants for defamation (group libel) | Statements and circumstances (website, school outreach, resulting customer inquiries) show readers understood the campaign targeted appellants’ salons | Statements addressed tanning generally, named no salons/products, and were statewide/public — recipients would not reasonably understand they targeted appellants | Court affirmed: no genuine factual dispute; statements were general industry criticism, not “of and concerning” these appellants |
| Whether § 87-302(a)(9) (UDTPA) requires specificity tying disparaging statements to a claimant’s goods/services | UDTPA requires only that statements disparage a claimant’s goods/services; no heightened specificity required | “Of another” language and common-law product disparagement principles require statements be sufficiently specific to be “of and concerning” claimant’s goods/services | Court held UDTPA product disparagement requires the statement be “of and concerning” claimant’s specific goods/services; general industry-wide allegations insufficient |
| Whether factual evidence (employee affidavits, NCC internal docs, market share) raises a genuine issue | Employee affidavits that customers asked salon-specific questions create a triable issue; internal NCC docs show targeting | Affidavits do not show customers thought statements targeted appellants specifically; internal docs were not available to public readers and cannot create reasonable inference of targeting | Court held affidavits/internal docs insufficient to create a genuine issue of fact; summary judgment appropriate |
| Whether statements actionable as product disparagement given nationwide/statewide audience and alternative indoor/outdoor tanning options | Appellants argued market concentration in Omaha/Lincoln made them identifiable targets | NCC’s campaign was statewide/national in scope and statements applied to many tanning venues and outdoor tanning, not solely appellants | Court held statements applied broadly and did not single out appellants’ goods/services; claim fails as a matter of law |
Key Cases Cited
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (federal cornerstone for defamation standards)
- Rosenblatt v. Baer, 383 U.S. 75 (1966) (discusses the “of and concerning” requirement)
- Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262 (7th Cir. 1983) (uniform/UDTPA-type disparagement requires more than industry-wide statements)
- Auvil v. CBS 60 Minutes, 800 F. Supp. 928 (E.D. Wash. 1992) (circumstances and contextual clues can make general statements identify a particular group or product)
- Matheson v. Stork, 239 Neb. 547 (Neb. 1991) (factors for determining whether a communication is "of and concerning" a claimant)