United States Court of Appeals

For the Eighth Circuit

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No. 15-2184

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Others First, Inc.

lllllllllllllllllllll Plaintiff - Appellant

Better Business Bureau of Greater St. Louis, Inc.

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: January 14, 2016

 Filed: July 12, 2016

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Before LOKEN, GRUENDER, and KELLY, Circuit Judges.

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LOKEN, Circuit Judge.

In August 2011, the Better Business Bureau of Greater St. Louis (“the BBB”)

published a news release (“the Release”) expressing concern about Others First, Inc. 

(“Others First”), a Michigan-based charity that had recently begun soliciting vehicle

donations in the St. Louis area. A copy of the Release is attached as Appendix A to

this opinion. In June 2014, Others First filed this diversity action in the Eastern

District of Missouri, asserting tort claims for injurious falsehood, based on alleged

falsehoods contained in the Release, and for interference with business expectancy,
based on allegations that the BBB published the Release to direct car donations to a

competing BBB member, took actions to keep the Release on the first page of Google

search results for the search term “Others First,” and induced a Kansas City television

station to run a story in November 2014 based on the Release. 

The BBB filed motions to dismiss and for summary judgment. The district

court1

 granted summary judgment in favor of the BBB, concluding that the Release

was not actionable injurious falsehood because “no reasonable factfinder could ever

find that the BBB stated anything other than the truth and its seemingly well-informed

opinions about Others First,” and that the tortious interference claim necessarily failed

because the Release contained no wrongful defamation. Others First appeals, arguing

that both claims should have survived summary judgment because the record

contained sufficient evidence to raise genuine issues of disputed fact.2

 Reviewing the

grant of summary judgment de novo and viewing the facts in the light most favorable

to the non-moving party, Others First, we affirm. See Mercer v. City of Cedar Rapids,

308 F.3d 840, 843 (8th Cir. 2002) (standard of review). 

I. The Tortious Interference Claim. 

Others First’s principal argument on appeal is that the district court erred in

concluding that the tortious interference claim necessarily fails because the Release

contained no actionable injurious falsehood. Under Missouri law, “[t]ortious

interference with a contract or business expectancy requires proof of: (1) a contract

or valid business expectancy; (2) defendant’s knowledge of the contract or

1

The Honorable Rodney W. Sippel, Chief United States District Judge for the

Eastern District of Missouri.

2

Others First argued to the district court that summary judgment was premature

because it had not conducted discovery, but it did not file a motion seeking additional

time to conduct discovery. See Fed. R. Civ. P. 56(d). 

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relationship; (3) a breach induced or caused by defendant’s intentional interference;

(4) absence of justification; and (5) damages.” Nazeri v. Mo. Valley Coll., 860

S.W.2d 303, 316 (Mo. banc 1993). To show an absence of justification, Others First

has the burden of producing sufficient evidence to show that the BBB employed

improper means to further its own interests. “[I]mproper means are those that are

independently wrongful, such as . . . defamation, misrepresentation of fact, . . . or any

other wrongful action recognized by statute or the common law. Conversely, no

liability arises if the defendant had an unqualified legal right to do the act complained

of.” Id. at 317 (citation omitted).

“[W]here a tortious interference claim is based upon an alleged defamation, if

a plaintiff’s defamation claim fails, the tortious interference claim must also fail

because the plaintiff cannot establish an absence of justification as a matter of law.” 

Castle Rock Remodeling, LLC v. Better Bus. Bureau of Greater St. Louis, 354 S.W.3d

234, 245 (Mo. App. 2011); see Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-20

(1990). We reject Others First’s contention that the record contains no evidence

supporting the BBB’s legitimate interest in warning consumers of questionable

business practices. If record evidence was needed, Others First itself provided the

BBB’s published Mission Statement in its summary judgment responsive exhibits. 

Thus, if the Release contained no actionable injurious falsehood -- the issue we will

discuss in Part II -- Others First needed to submit sufficient evidence of some other

independently wrongful action to avoid summary judgment dismissing its tortious

interference claim. 

Others First argues that it submitted sufficient evidence of three independently

wrongful acts: the BBB (1) published the Release “to help a BBB member . . . obtain

an unfair and illegal competitive advantage over Others First”; (2) republished the

Release to keep it at the top of Google search engine results; and (3) induced or

assisted a Kansas City television station to run the November 2014 story based on the

Release. Assuming without deciding that sufficient evidence supporting these

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allegations of wrongful motive and actions would defeat a defamation defendant’s

motion for summary judgment, the record contains no evidence supporting these

allegations, other than their assertion in the First Amended Complaint, and

declarations by an officer and a contracting agent stating that the assertions are what

Others First believes to be true. “Mere opinion fails to raise any issue of material fact

that precludes summary judgment.” Rice v. Hodapp, 919 S.W.2d 240, 244 (Mo. banc

1996); see Castle Rock, 354 S.W.3d at 245-46. Therefore, Others First failed to prove

the BBB employed any other improper means, and the district court properly granted

summary judgment on this claim if the Release was not defamatory.

II. The Injurious Falsehood Claim.

Under Missouri law, although defamation and injurious falsehood are distinct

torts, for a statement to be actionable as injurious falsehood it must be defamatory. 

See Diehl v. Kintz, 162 S.W.3d 152, 155-56 & n.4 (Mo. App. 2005). “[O]ne who

publishes a false statement harmful to the interests of another is subject to liability for

pecuniary loss resulting to the other” if:

(a) he intends for publication of the statement to result in harm to

interests of the other having a pecuniary value, or either recognizes or

should recognize that it is likely to do so, and (b) he knows that the

statement is false or acts in reckless disregard of its truth or falsity.

Wandersee v. BP Prods. N. Am., Inc., 263 S.W.3d 623, 628 (Mo. banc 2008)

(quotation and emphases omitted). To determine if the statement is defamatory, the

challenged words “must be stripped of any pleaded innuendo and construed in their

most innocent sense,” but at the same time “must be considered in context, giving

them their plain and ordinarily understood meaning.” Nazeri, 860 S.W.2d at 311

(citations omitted).

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If a statement is true, it is not defamatory as a matter of law. Rice, 919 S.W.2d

at 243-44. Statements of opinion are protected by the First Amendment, and, even if

made maliciously or insincerely, cannot be actionable. See Hammer v. City of Osage

Beach, 318 F.3d 832, 842 (8th Cir. 2003) (applying Missouri law). Whether a

statement is a protected opinion is also a question of law. The court must look to “the

totality of the circumstances to determine whether the ordinary reader would have

interpreted the statement as an opinion.” Id. at 842-43 (quotation omitted). However,

the First Amendment “privilege does not apply when the statement of opinion implies

the existence of undisclosed defamatory facts.” The question for the court is “whether

a reasonable factfinder could conclude that the statement [of opinion] implies an

assertion of objective fact.” Castle Rock, 354 S.W.3d at 241 (quotation omitted). 

Others First failed to plead alleged defamatory statements with the particularity

required by Missouri law. However, the district court denied the BBB’s motion to

dismiss because Others First’s response in opposition to summary judgment alleged

that eight specific statements in the Release were defamatory as a matter of law. Like

the district court, we will limit our analysis to those eight statements.

1. “BBB Urges Caution On Others First Car Donation Programs.” Others

First solicits car donations nationwide, operating under various names including Cars

Helping Veterans, Cars Fighting Cancer, and Mikie’s Minutes. The BBB began

investigating Others First in March 2011 when it began soliciting car donations in the

St. Louis area under the name Cars Helping Veterans. The Release suggested caution

because of possible ties between Others First and Rick Frazier, who was the subject

of prior complaints for his work with vehicle donation programs in other States. 

Urging caution was an expression of the BBB’s opinion because it was “a subjective

assessment and not an objectively verifiable fact.” Castle Rock, 354 S.W.3d at 242. 

Therefore, we consider whether the “opinion implie[d] the existence of undisclosed

defamatory facts.” Id. at 241. Reading this statement in the context of the Release as

a whole, we conclude that the truthful facts in the Release were sufficient to support

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the cautionary opinion without implying any other facts. Thus, it was protected

opinion and not defamatory as a matter of law. See Hammer, 318 F.3d at 842. Others

First argues the BBB could not have “republished” the Release on the internet for four

years solely to “caution” consumers. But it submitted no evidence to support this

speculative, counterintuitive assertion. 

2. “The BBB advises caution when dealing with Rick Frazier and the charity

Others First. Others First is a two-year-old nonprofit that raises money for causes,

such as disabled and homeless veterans, cancer research, children and animals. In

recent months, Others First has mailed solicitations to St. Louis area consumers on

behalf of an affiliated charity, Cars Helping Veterans.” Like statement 1, this

statement urging caution was a protected opinion. The facts set forth are undisputed.

3. “A national charity that is seeking car donations in the St. Louis area has

ties to a Detroit area businessman who has been criticized for alleged improprieties

in running similar programs, the [BBB] warns.” In support of its motion for

summary judgment, the BBB submitted a December 1998 article from the Detroit

Free Press stating that Charity Motors, “the largest of metro Detroit’s used-car

donation programs,” gave less than 40% of its money to charity last year and paid its

“founder,” Rick Frazier, “a huge sum . . . drawing sharp criticism from [the] Michigan

Attorney General”; and that Frazier had previously been sued by Mother Waddles

Perpetual Mission for allegedly withholding money he earned by running the

Mission’s vehicle donation program. The BBB also submitted documentary evidence

establishing that (i) in 2010, Others First entered into consulting agreements with

Charity Funding Consulting Group, Inc., a for-profit corporation formed and owned

by Frazier, and with Charity Car Brokers, LLC, a corporation formed by Maurice

Banks, former Treasurer of Others First, to administer and manage Others First’s

vehicle donation program; (ii) Banks and Frazier were also involved with a venture

called Charity Tickets, Inc.; (iii) some sources listed Frazier as the founder of Others

First, alough Frazier denied being the founder and David Kennedy, President of

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Others First, stated that Frazier had never been a director or officer of Others First in

a letter the BBB quoted in the Release; and (iv) Frazier had filed a lawsuit against the

Military Order of the Purple Heart Service Foundation relating to his contracts to run

its car donation charities, and the Foundation filed a counterclaim alleging that Frazier

misappropriated funds and breached the contracts.

Others First argues that it had no “ties” to Frazier because Frazier was not the

founder of Others First. Considering the statement in context and giving the words

their ordinary meaning, a reader would construe “ties” more broadly than Others First. 

Frazier’s undisputed “tie” to Others First was a contract to run its vehicle donation

program for a percentage of the profits. It was also true that Frazier was “criticized

for alleged improprieties” in the Detroit Free Press article and the Foundation

countersuit. Thus, stripped of pleaded innuendo, statement 3 was factual and not

defamatory. See Nazeri, 860 S.W.2d at 311. 

4. “Michelle L. Corey, BBB President and CEO, said the BBB is concerned

about Frazier’s controversial history with other charitable vehicle donation

programs. ‘Mr. Frazier’s past problems are reason to be cautious about his newest

venture,’ she said.” This statement was Corey’s opinion, another expression of

caution like the protected opinion in statements 1 and 2. There was nothing in

Corey’s opinion to suggest an implicit defamatory fact. The Release provided the

context for her opinion, including details of Frazier’s “controversial history.” Others

First argues the phrase “newest venture” falsely implied that Frazier founded Others

First. But the plain meaning of “newest venture” is not so limited. Frazier

unquestionably joined in a business venture with Others First by agreeing to manage

its vehicle donation program. The statement was not defamatory as a matter of law.

5. “Corey also said it appears that a former associate of Frazier, and perhaps

even Frazier himself, may have potential conflicts of interest over their involvement

in the Others First donation program.” Alleging a conflict of interest is not

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defamatory unless it implies undisclosed defamatory facts. See Pape v. Reither, 918

S.W.2d 376, 381 (Mo. App. 1996) (allegations of illegal conduct are non-defamatory

opinions); Koly v. Enney, 269 F. App’x 861, 865 (11th Cir. 2008) (classifying

conduct as “a serious conflict of interest” was protected opinion). The statement was

presented as opinion, couched in equivocal language -- “appears,” “perhaps,” “may,”

and “potential.” See Ribaudo v. Bauer, 982 S.W.2d 701, 705 (Mo. App. 1998)

(“[T]he average reader would have believed the statements were opinion” because of

their “qualifying language.”) The Detroit Free Press article provided a basis for

Corey’s “conflict of interest” opinion, reporting that “charity officials are prohibited

by federal law from deriving unreasonable personal gain from their involvement with

their charity.” Statement 5 was non-defamatory opinion as a matter of law. 

6. “Frazier is described in the media and on the website of an Others First

charity as the charity’s founder, although he denies that role. Banks is the previous

treasurer of Others First.” This statement is non-actionable as a matter of law

because it was true, whether or not Frazier was in fact Other First’s founder. The

BBB included Other First’s response in the Release: “Kennedy . . . said in a letter to

the BBB that Frazier has never been a board member or officer of Others First and any

reference to him as founder is ‘unauthorized and misguided.’”

7. “Frazier’s problems in the charity arena have been the subject of news

reports. The Detroit Free Press reported in 1998 that the Mother Waddles Perpetual

Mission charity in Detroit accused Frazier of several improprieties in that donation

program. The newspaper also raised questions about Frazier’s involvement with the

Charity Motors donation program in Detroit.”

8. “Last year, the Virginia-based Military Order of the Purple Heart

Foundation alleged in a court suit that an audit found widespread problems with

Frazier’s role in that program, including self-dealing, illegal practices and

destruction of incriminating records.” Others First does not contest the fact that the

Detroit Free Press wrote articles critical of Frazier and that the Foundation made

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allegations in a countersuit. The Release noted that “Frazier denied the claims.” 

These statements were non-defamatory because the facts stated were true. 

Others First argues that “[n]o materials are provided to the reader to assess the

veracity” of the statements in the Release. However, there is no requirement that

readers be provided source materials for non-defamatory speech to be protected. 

Hammer, 318 F.3d at 843. The district court properly granted summary judgment

dismissing Other First’s claim of injurious falsehood because all of the challenged

statements were either true statements of fact or protected opinion, and properly

granted summary judgment dismissing the tortious interference claim given the

absence of wrongful defamation.

The judgment of the district court is affirmed.

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Appendix A