145 F. Supp. 3d 737
M.D. Tenn.2015Background
- Service Jewelry bought a radio advertising campaign from Cumulus (WWTN-FM) for May 7–July 17, 2014 consisting of prerecorded spots and live endorsements by host Michael DelGiorno.
- Service Jewelry supplied talking points (referencing a TV investigative report criticizing Genesis Diamonds) but did not explicitly prohibit naming Genesis; Service Jewelry later asked DelGiorno to "take [Genesis] completely down."
- DelGiorno named Genesis in several live endorsements; Genesis complained and Cumulus posted and aired apologies by the station and by DelGiorno acknowledging reliance on commercial copy and apologizing for statements he didn’t verify.
- Service Jewelry sued Cumulus in Tennessee state court alleging breach of contract, defamation, Tennessee Consumer Protection Act (TCPA) violations, and a Lanham Act claim; Cumulus removed and moved for summary judgment.
- At summary judgment Service Jewelry produced only a CFO declaration asserting reputational and financial harm but no consumer surveys, financial records, expert testimony, or identified consumer witnesses to show actual deception or quantifiable damages.
- The court granted summary judgment for Cumulus, holding Service Jewelry failed to present evidence of actual consumer deception (Lanham Act) or actual damages (defamation, TCPA, breach of contract).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lanham Act (§1125(a)(1)(B)) — false or misleading commercial advertising | Apologies misrepresented that Service Jewelry used false advertising and thus harmed its commercial activities | Apologies are ambiguous or opinion, not literally false; plaintiff offers no evidence of actual consumer deception | Court: Statements were either nonactionable opinion or ambiguous; plaintiff failed to prove actual deception — summary judgment for Cumulus |
| Defamation (Tennessee) — defamatory publication and damages | Apologies defamed Service Jewelry and caused reputational and financial injury | No admissible evidence of actual injury or specific damages; plaintiff offers only conclusory CFO declaration | Court: Even assuming publication, plaintiff failed to prove actual damages — summary judgment for Cumulus |
| Tennessee Consumer Protection Act (§47-18-104(b)(8)) — disparagement by false/misleading representations | Apologies disparaged Service Jewelry’s business integrity and caused ascertainable loss | No proof of ascertainable monetary loss or causation tied to Apologies | Court: Plaintiff produced no evidence of ascertainable loss — summary judgment for Cumulus |
| Breach of Contract — deviation from agreed advertising content | DelGiorno materially deviated from the parties’ agreement by naming Genesis; issuing apologies breached contract | Contract documents (sales order, standard terms, on-air form) contain no term barring DelGiorno from naming competitors or controlling station statements outside paid ads; no breach identified | Court: No contractual term was shown to be breached; summary judgment for Cumulus |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden shifting framework)
- Anderson v. Liberty Lobby, 477 U.S. 242 (genuine issue and "scintilla" standard at summary judgment)
- Moldowan v. City of Warren, 578 F.3d 351 (drawing inferences for nonmovant; summary judgment discussion)
- Am. Council of Certified Podiatric Physicians & Surgeons v. Am. Bd. of Podiatric Surgery, 185 F.3d 606 (Lanham Act — literal falsity vs. actual deception)
- Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723 (plaintiff must show how consumers actually react; surveys/market evidence typical for Lanham Act claims)