IN THE SUPERIOR COURT

OF THE STATE OF DELAWARE

IMAGES HAIR SOLUTIONS 

MEDICAL CENTER, a division

Of IMAGES, INC., and

TOM PRENTICE,

 Plaintiffs, 

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 v. )

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 C.A. No. N13C-05-077 WCC 

FOX TELEVISION STATIONS, 

INC., a Delaware corporation, and

JOYCE EVANS,

 Defendants.

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Submitted: October 5, 2015

Decided: January 29, 2016

Defendants’ Motion for Summary Judgment -- GRANTED

MEMORANDUM OPINION

Austen C. Endersby, Esquire, Michael K. Twersky, Esquire, Fox Rothschild LLP, 

919 N. Market Street, Suite 300, Wilmington, DE 19801. Attorneys for 

Defendants.

Daniel A. Griffith, Esquire, Whiteford Taylor Preston, LLC, 405 North King 

Street, Suite 500, Wilmington, DE 19801. Attorney for Plaintiffs. 

CARPENTER, J.
2

Before the Court is Defendants Fox Television Stations, Inc. (“Fox”) and 

Joyce Evans (“Evans”) (collectively, “Defendants”) joint Motion for Summary 

Judgment. The Plaintiffs in this matter are Images Hair Solutions Medical Center 

(“Images”) and Tom Prentice (“Prentice”) (collectively, “Plaintiffs”). On 

December 20, 2013, the Court granted Defendants’ Motion to Dismiss Plaintiffs’ 

defamation and false light claims.1

 After discovery, Defendants have moved for 

summary judgment on Plaintiffs’ remaining claim for tortious interference with 

prospective business relations. For the foregoing reasons, the Motion will be 

GRANTED.

BACKGROUND

Tom Prentice, together with his wife Paulette, owned and operated Images, a 

business offering restorative hair loss treatments.

2 The central focus of Plaintiffs’ 

business model was the MEP-90 Hair Growth Stimulation System (“MEP-90”), a 

“revolutionary” laser-device recently approved by the FDA to treat androgenetic 

alopecia in females.

3

 After securing start-up financing from an investor and 

contracting with a medical advisor, the Prentices opened the facility in April 2011.

4

 

To advertise Images’ services, Plaintiffs purchased airtime on local radio stations 

 1 Images Hair Sols. Med. Ctr. v. Fox News Network, LLC, 2013 WL 6917138, at *1 (Del. Super. 

Dec. 20, 2013).

2 Pls. Compl., at 3, ¶ 11. 

3 Id. at 4, ¶ ¶ 13-16; Pls. Br. in Opp’n to Defs. Mot. for Summ. J, at 3. 

4 Pls. Compl., at 4, ¶¶ 17-19.
3

and television shows, including Talk Philly on CBS and the 10! Show on NBC, all 

of which were broadcasted throughout the greater-Philadelphia area.5

 

In March 2012, Defendant Joyce Evans, a reporter for Fox News, contacted 

Plaintiffs about producing and airing a segment on Images' MEP-90 treatments. 

Evans allegedly assured Plaintiffs that the broadcast would portray Images and the 

MEP-90 in a positive light. Relying on those assurances, Plaintiffs agreed to 

participate in the segment, which included interviews with Images’ staff, a 

demonstration of the MEP-90 treatment on an Images’ patient, and the patient’s 

testimonial about her results. Following filming, Evans allegedly reiterated the 

positive nature of the segment and informed Plaintiffs that it would air directly 

after American Idol, when Fox’s ratings were highest, on May 16, 2012. Given 

this information, Plaintiffs encouraged their current and prospective customer base 

to tune into Fox on the night of the broadcast. 

The final segment, which the Court has reviewed, was approximately five 

minutes long and included footage in addition to the scenes filmed at Images, 

interviews with two doctors, textual explanations of Images’ business, and 

commentary by Evans. Ultimately, Defendants are alleged to have “manipulated” 

the raw footage so as to present “Images and the MEP-90 system in the most 

 5 Id. at 4-5, ¶¶ 20-22.
4

negative light possible.”6

 Specifically, Plaintiffs claim Defendants selectively 

edited out a significant amount of the patient’s positive feedback7 and replaced it 

with negative commentary by individuals Evans recruited.

8

 Additionally,

Plaintiffs allege the following statements presented “misleading information and 

factual inaccuracies:”9

(1) Evans's statement that she was “following up” on the “buzz” implying 

that she had conducted a prior investigation on Images, which she had not.

 6 Pl. Resp. in Opp’n to Def. Mot. for Summ. J., at 6.

7 Id. at 6-7. Specifically, Plaintiffs object to the removal of the following portions of the raw 

footage with respect to the client’s, Ms. Shahikian, testimonial:

• In the raw footage, Ms. Shahikian said on camera, “I’m not sure about how many 

treatments but I remember running in here in the middle of December and telling the girls 

in the front, ‘Today is the day my hair looks different. Today is the day that I’m okay to 

come out with the wind blowing’”. That positive comment in the raw footage was cut.

Ms. Shahikian also said on camera in the raw footage that the MEP-90 device is “just 

something you have to try.” This comment was cut out.

• Ms. Shahikian stated on camera in the raw footage “I feel better. I wake up every day, I 

do my hair, nobody is staring at me.” This positive comment about the MEP-90 device 

from the raw footage was cut as well.

• In reflecting on the positive results she received, Ms. Shahikian said in the raw footage 

“How do you put a price on that?” This positive evaluation was also edited out.

• In the raw footage, Ms. Shahikian said “I realize I can’t turn back the clock to where I 

used to be, but at least let me be able to go out and feel good.” This statement was also 

edited out.

• In the raw footage, Ms. Shahikian stated “Not only am I growing new hair and I can 

see that from a number of different angles, but what I’ve got is healthier. There were two 

different textures of hair on my head not too long ago, oh yeah.” This comment was 

edited out of the final broadcast.

• The raw footage had a comparison of Ms. Shahikian’s hair before and after her 

treatment with the MEP-90 device with Ms. Shahikian stating “Look at my picture. Look 

at me now.” That portion of the raw footage was edited out. 

• In the raw footage, Mr. Prentice principal of Images described the process of how 

Images’ customers receive treatment. That description stated only that customers receive 

oversight from Images’ physician, “Dr. Luke.”

Id. (internal citations omitted).

8 Id. at 7.

9 Id. at 8.
5

(2) Evans's statements that Kim was “cooking under the hood” and that she 

became “flushed” during treatment; thus, portraying the treatment as 

uncomfortable.

(3) The medical doctor's statements that “many if not all” of the positive 

results were attributable to the topical solution and not the MEP–90 

machine.

(4) Evans's statement that patients at Images were required to go to their 

family doctor for examination and blood-work prior to being treated.

(5) Evans's comparison of Images to “internet medicine.”

(6) The medical doctor's statement that he did not believe the MEP–90 

treatment was worth $50 a treatment.10

Plaintiffs claim their business and reputation was “destroyed” as a result of 

the broadcast.11 Specifically, they allege Images realized an “obvious and 

precipitous drop in business,” lost profits, and lost value in its unsuccessful 

attempts to sell its locations for total damages of approximately $5.2 million.12 

On May 9, 2013, Plaintiffs filed a Complaint asserting claims against 

Defendants for (1) defamation; (2) false light and invasion of privacy; and (3) 

tortious interference with prospective business relations. Defendants moved to 

dismiss Plaintiffs Complaint in response on July, 15, 2013. The Court heard oral 

 10 Id. at 8-9. 11 Id. at 9. 

12Id. at 10 & Ex. C. Plaintiffs also cite two emails they received as consequences of the 

broadcast: 

• Ms. Shahikian, who experienced positive results from the procedure (depicted in the 

broadcast as falsely positive results) wrote to Defendants, saying “...Watching your piece 

that night sickened me!! Why didn’t you tell me this was going to be some one-sided 

debate? You chose words from sentences that made me look angry, not pleased,...What 

you did to Tom and Paulette was just downright WRONG!!! 

• The producer from another television station wrote to Images, advising that 

Defendants’ “discredited” the process and said about Defendants “I can’t believe they did 

that”. Id. at 9 (internal citations omitted).
6

arguments on August 26, 2013 and granted Defendants’ motion with respect to the 

defamation and false light claims, but denied it as to the tortious interference claim 

in accordance with its December 20, 2013 opinion.13 On September 9, 2015, after 

discovery, Defendants filed the instant Motion for Summary Judgment. 

STANDARD OF REVIEW

The Court will grant summary judgment when it is clear from the record 

“that there is no genuine issue as to any material fact and that the moving party is 

entitled to judgment as a matter of law.”14 If the movant is able to show “that the 

undisputed facts support [its] claims or defenses,”15 the burden shifts to the nonmoving party to demonstrate that material facts remain in dispute for “resolution 

by the ultimate fact-finder.”16 While the Court is required to view the evidence in

a light most favorable to the non-moving party,17 “[t]hat evidence... must be more 

than bare assertions without supporting facts.”18

 13 Images Hair Sols. Med. Ctr., 2013 WL 6917138, at *1.

14 Super. Ct. Civ. R. 56 (c). 

15 See Gerstley v. Mayer, 2015 WL 756981, at *3 (Del. Super. Feb. 11, 2015). See also Acro 

Extrusion Corp. v. Cunningham, 810 A.2d 345, 347 (Del. 2002) (defendants must show both 

“the absence of a material fact and entitlement to judgment as a matter of law”).

16 See Gerstley, 2015 WL 756981, at *3 (“It is not enough for the opposing party merely to assert 

the existence of such a disputed issue of fact. The opponent to a motion for summary judgment 

‘must do more than simply show that there is some metaphysical doubt as to material facts.’”). 

See also Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995). 17 See Brzoska, 668 A.2 at 1364. See also Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99 (Del. 

1992) (“In discharging this function, the court must view the evidence in the light most favorable 

to the non-moving party.”).

18 Pfeiffer v. State Farm Mut. Auto. Ins. Co., 2011 WL 7062498, at *4 (Del. Super. Dec. 20, 

2011).
7

Summary judgment is also appropriate “after adequate time for 

discovery...against a party who fails to make a showing sufficient to establish the 

existence of an element essential to that party’s case, and on which that party will 

bear the burden of proof at trial.”19 In such cases, the Delaware Supreme Court has 

found “there can be ‘no genuine issue as to any material fact,’ since a complete 

failure of proof concerning an essential element of the nonmoving party's case 

necessarily renders all other facts immaterial.”20 Thus, the non-moving party must 

show sufficient evidence exists “for a jury to return a verdict for that party” and 

where “the evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.”21 

DISCUSSION

In the instant motion, Defendants contend: (1) Plaintiffs failed “to adduce 

evidence on th[e] necessary elements” of tortious interference with prospective 

relations claim, namely with respect to the requisite elements of intent to interfere 

and improper conduct; and (2) the First Amendment bars the Plaintiffs “from 

trying to plead around a fatally flawed defamation claim by relabeling it as another 

 19 See Health Sols. Network, LLC v. Grigorov, 2011 WL 443996, at *2 (Del. Feb. 9, 2011)

(quoting Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991)).

20 See id.

21 See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 264 (1986)(emphasis in 

original)).
8

tort.”22 In response, Plaintiffs argue (1) ample evidence supports their tortious 

interference claim and (2) issues of “intent” cannot properly be resolved on a 

motion for summary judgment.23 

I. Elements of Tortious Interference 

To succeed on a claim for tortious interference with prospective business 

relations, a plaintiff must prove: “(a) the reasonable probability of a business 

opportunity, (b) the intentional interference by defendant with that opportunity, (c) 

proximate causation, and (d) damages.”24 These elements must, however, “be 

considered in light of a defendant's privilege to compete or protect his [or her]

business interests in a fair and lawful manner.”25 In other words, even cases of 

intentional interference will fail when unaccompanied by some proof that the 

defendant’s conduct was improper.

26

 22 Defs. Br. in Supp. of Mot. for Summ. J., at 2, ¶¶ 5-6. 

23 Pls. Br. in Opp’n to Defs. Mot. for Summ. J., at 11-12. 

24 See DeBonaventura v. Nationwide Mut. Ins. Co., 428 A.2d 1151, 1153 (Del. 1981). See also 

Kimbleton v. White, 2014 WL 4386760, at *8 (D. Del. Sept. 4, 2014) (applying Delaware law) 

aff'd, 608 F. App'x 117 (3d Cir. 2015); Hursey Porter & Associates v. Bounds,1994 WL 762670, 

at *16 (Del. Super. Dec. 2, 1994) (“The last element's reference to ‘privilege’ has the same 

meaning as ‘with justification’ or ‘not improper’ as used in connection with claims of tortious 

interference with contractual relations.”). 

25 See DeBonaventura, 428 A.2d at 1153. 26 See Agilent Techs., Inc. v. Kirkland, 2009 WL 119865, at *8 (Del. Ch. Jan. 20, 2009)(“An 

alleged interference in a prospective business relationship is only actionable if it is wrongful.”).

See also Restatement (Second) of Torts § 766B (1979) (“One who intentionally and improperly 

interferes with another's prospective contractual relation...is subject to liability to the other for 

the pecuniary harm resulting from loss of the benefits of the relation, whether the interference 

consists of (a) inducing or otherwise causing a third person not to enter into or continue the 

prospective relation or (b) preventing the other from acquiring or continuing the prospective 

relation.”).
9

For purposes of Defendants’ Motion to Dismiss, this Court found Plaintiffs’ 

allegations that a number of customers had cancelled appointments the day after 

the broadcast sufficed, at that juncture, to plead the first element of reasonable 

probability of business opportunity.27 However, the Court expressed its concern, 

sua sponte, about whether Plaintiffs could show the requisite intent and 

impropriety: 

It is unclear to the Court what facts would support the allegation that 

Defendants, through the airing of their broadcast, intended to cause 

Plaintiffs' customers to cancel appointments or cease treatment or that 

Defendants knew such was certain or substantially certain to occur. 

Moreover, even if Plaintiffs were to point to facts supporting this contention, 

such interference must also be improper.28

Nevertheless, the Court allowed the tortious interference claim to proceed given 

the preliminary posture of the case and that the parties had not briefed the issue.29 

Now, almost two years of discovery later, Defendants move for summary judgment 

on the grounds that Plaintiffs have yet to produce evidence that (1) Defendants 

intended to interfere with Images’ business or that (2) Defendants’ reporting and 

airing of the broadcast was improper. 

 27See Images Hair Sols. Med. Ctr., 2013 WL 6917138, at *6 (“Although Plaintiffs did not plead 

the names or identifying information within the Complaint, such is not necessary in the pleading 

stage. Plaintiffs have justifiable reasons for initially excluding the names of their potential clients 

and, as the case progresses, these identities are the proper subject of discovery and further 

inquiry.”). Defendants do not, in the instant motion, again challenge this element.

28 Id. at *7.

29 See id. 
10

A. Intentional Interference 

One intentionally interferes with another’s prospective business when he or 

she acts with a “desire[] to bring about” the interference or with knowledge that 

“the interference is certain or substantially certain to occur as a result of his [or 

her] action.”30 A finding of intent by “substantial certainty” requires more than just 

knowledge of a likelihood or risk that interference could result.31

Here, Defendants argue Plaintiffs failed to offer evidence proving their 

conduct, airing the broadcast, was motivated by an intentional desire to harm 

Images or pursued despite substantial certainty that such harm would result.32 

Plaintiffs counter that a “cursory viewing” of the segment itself supplies adequate 

support for their position that the “only possible motivation” behind Defendants’ 

decision to edit and air a broadcast depicting the MEP-90 in such a negative light 

was their desire to ruin the public’s perception of Images.33 According to 

Plaintiffs, the “agenda-driven” broadcast was intended “to take a 

product...favorably portrayed by Defendants’ competitors (CBS and NBC) and 

 30 See Restatement (Second) of Torts § 766B (1979). See also Restatement (Second) of Torts § 

8A (1965) (stating that one acts intentionally when he or she “desires to cause consequences of 

[the] act, or ...believes that the consequences are substantially certain to result from it”).

31See Restatement (Second) of Torts § 8A (1965)(“As the probability that the consequences will 

follow decreases, and becomes less than substantial certainty, the actor's conduct loses the 

character of intent, and becomes mere recklessness, as defined in § 500. As the probability 

decreases further, and amounts only to a risk that the result will follow, it becomes ordinary 

negligence, as defined in § 282.”). 

32 Defs. Br. in Support of Mot. for Summ. J., at 9-10, ¶¶ 26-28. 

33 Pls. Br. in Opp’n to Defs. Mot. for Summ. J., at 8-9, 11-12.
11

about which there had been a ‘buzz’...and destroy it.”34 Plaintiffs also maintain 

that it would be improper for this Court to resolve an issue of intent on a motion 

for summary judgment. 

It is generally true that, “when an ultimate fact to be determined is one of 

intention[,] a decision as to intent on motion for summary judgment is 

inappropriate.”35 However, Delaware law makes clear that this “general rule 

necessarily supposes that there is some evidence of the required intent.”36 Thus, 

where, as here, “a plaintiff ... has had fair opportunity to utilize discovery to 

explore his defendant's subjective state of mind and yet cannot point to anything 

tangible which indicates that defendant had the intent...to interfere, plaintiff cannot 

prevail and the defense motion must be granted.”37 

In its December 2013 opinion, this Court expressed doubt as to the viability 

of Plaintiffs’ tortious interference claim, finding it “difficult to envision the motive 

or intent of the Defendants in interfering with the Plaintiffs' business 

relationship.”38 After two years of discovery, the Court has before it a copy of 

Images’ business plan, a damages calculation, emails received by the parties, and, 

perhaps most relevant to the present inquiry, depositions of the Prentices and Ms. 

 34 Id. at 8-10.

35 See Murphy v. Godwin, 303 A.2d 668, 672-73 (Del. Super. 1973). 36 See id. (emphasis added). 

37 See id. 

38 Images Hair Sols. Med. Ctr., 2013 WL 6917138, at *7.
12

Evans. Unfortunately for Plaintiffs, the record as developed serves only to further 

undermine their tortious interference claim. 

In her deposition testimony, Evans discussed her obligation to provide both 

sides of a news story and stated that the purpose of the Broadcast was to provide 

Fox’s audience with a comprehensive and balanced look at the information she 

recovered on a newly FDA-approved device from a spectrum of sources so that 

viewers could “make up their own minds about what they’re seeing.”39 To achieve 

this result, she testified that it is customary, as a news reporter at Fox, to consult a 

number of experts from varying fields especially when reporting on issues 

involving medicine or technology.40 Evans further stated that “there was never any 

intent to harm the Prentices in anyway. ...We did both sides, which is what I 

explained would happen from the very beginning.”41 She testified she was 

surprised to learn of the Prentices’ complaints and that she relayed them to her 

supervisor immediately. Mr. Prentice’s deposition testimony provides additional 

insight as to Defendants’ conduct after the Broadcast, revealing that Fox responded 

to Plaintiffs’ dissatisfaction by removing the segment from the network’s public

 39 Evans Dep. at 129-130. 40 Id. at 78-80. 41 Id. at 166. 
13

archives and offering the Prentices an opportunity to “come in and rebut the 

statements,” which they declined.42 

Having reviewed the record as a whole, this Court simply cannot agree with 

Plaintiffs’ position that Defendants’ “only possible motivation” for the Broadcast 

was to prevent Images from securing future business. Rather, the discovery tends 

to show that the Defendants’ intention was simply to do their jobs of reporting the 

news. As Mrs. Prentice’s testimony makes apparent, Plaintiffs were familiar with 

paying to advertise their services on local television networks and understood that 

their voluntarily participation in the Broadcast at no expense was not for 

advertisement, but for news purposes.43 While the Plaintiffs hoped the Broadcast 

would provide the same benefit as their paid advertisements, it is simply not the 

function of the news to ensure that result. There is nothing here to suggest 

Defendants intended anything other than to provide a comprehensive review of the 

advantages and disadvantages of the MEP-90 system. Even if the Court were to 

accept Plaintiffs’ dismay that positive footage was removed from the Broadcast to 

include commentary of other professionals as sufficient to prove intent to interfere, 

the claim would still fail because such conduct is justified by virtue of Defendants’ 

journalistic profession. “[A] broadcaster whose motive and conduct is intended to 

foster public awareness or debate cannot be found to have engaged in the wrongful 

 42 Id. at 300.

43 Paulette Prentice Dep. at 46-49.
14

or improper conduct required to sustain a claim for interference with contractual 

relations.”44 Thus, the Court need not decide the element of intent because 

Defendants cannot be found to have acted with the requisite impropriety.45

B. Improper Conduct

Whether a given interference was improper depends on the facts and 

circumstances of the specific case. Delaware courts assess the propriety of a 

defendant’s conduct by reference to the factors set forth in § 767 of the 

Restatement (Second) of Torts:

46

(a) the nature of the actor's conduct,

(b) the actor's motive,

(c) the interests of the other with which the actor's conduct interferes,

(d) the interests sought to be advanced by the actor,

(e) the social interests in protecting the freedom of action of the actor and 

the contractual interests of the other,

(f) the proximity or remoteness of the actor's conduct to the interference and

(g) the relations between the parties.47

The ultimate inquiry then is “whether, upon a consideration of the relative 

significance of the factors involved, the conduct should be permitted without 

liability, despite its effect of harm to another.”48 

 44 Huggins v. Povitch, 1996 WL 515498, at *9 (N.Y. Sup. Ct. Apr. 19, 1996). 45 See Hursey Porter & Assoc. v. Bounds, 1994 WL 762670, at *16 (Del. Super. Dec. 2, 1994) 

(“Even if plaintiff can establish the remaining elements of this cause of action, it cannot satisfy 

the ‘without privilege’ element. As a matter of law, the Bank's interference with the plaintiff's 

prospective business opportunity was not improper under the circumstances of this case. For this 

reason, defendants' summary judgment motion will be granted as to this claim.”). 

46 See, e.g., WaveDivision Hldgs., LLC v. Highland Capital Mgmt., L.P., 49 A.3d 1168, 1174 

(Del. 2012). 

47 See Restatement (Second) of Torts § 767 (1979).
15

The first consideration, the nature of the conduct at issue, involves inquiry 

into how Defendants caused the alleged interference. The Broadcast, as promoted, 

edited, and aired is the means by which Defendants are accused of influencing 

Plaintiffs’ prospective customers.49 The Restatement provides that consideration 

of particular business customs or practices may be significant in determining 

whether Defendants’ means was improper or not.50 As Evans’ deposition 

testimony supports, it is customary for the news to broadcast reports covering both 

sides of an issue of public interest. Plaintiffs have adduced no evidence purporting 

to prove this case was any different. Therefore, this factor must weigh in favor of 

Defendants.

The second factor of motive concerns whether Defendants desired to bring 

about the interference as the sole or partial reason for the broadcast. Evans’s 

 48 See id.

49 Specifically, Plaintiffs maintain Defendants’ interfered by:

• Recogniz[ing] the “buzz” created by Images’ burgeoning business and revolutionary 

hair-restoration device;

• Solicit[ing] Images to have the device featured on Defendants’ news program 

• Advis[ing] Images that the segment would present the device in a favorable light, 

thereby inducing Images’ to maximize Images’ customers’ viewing of the segment; 

• Strategically tim[ing] the segment to maximize the viewership of the segment; 

• Edit[ing] the raw footage of the segment so as to eliminate the positive features of the 

device, misrepresent[ing] the experience of using the device and edit[ing] out the positive 

results obtained by a sample customer. Instead, in the editing process, Defendants 

replaced the positive “raw footage” with negative commentary and factual 

misrepresentations about the device.

Pls. Resp. in Opp’n to Def. Mot. for Summ. J., at 1. 

50 See Restatement (Second) of Torts § 767 (1979) (“Violation of recognized ethical codes for a 

particular area of business activity or of established customs or practices regarding disapproved 

actions or methods may also be significant in evaluating the nature of the actor's conduct as a 

factor in determining whether ... interference with...contractual relations was improper or not.”).
16

deposition testimony reveals her motive was to inform Fox viewers about multiple 

perspectives on a recently FDA-approved product. Plaintiffs have not put forth 

any evidence to the contrary, which is especially significant because “[o]nly if the 

defendant's sole motive was to interfere with the contract will this factor support a 

finding of improper interference.”51 Thus, this factor weighs in favor of finding 

Defendants’ conduct was not improper. 

The third and fourth factors focus on the interests of the parties. The interest 

with which the Broadcast allegedly interfered was Plaintiffs’ interest in prospective 

business. This factor requires consideration of the definiteness of the expectancy, 

and carries less weight here than it would in cases involving interference with 

existing contractual relationships. The interest sought to be advanced by the 

Defendants’ conduct was to provide for the public a comprehensive report on a 

new technological device that had recently attracted local attention. A balance of

these factors weighs in favor of finding Defendants did not act improperly. 

Additionally, consideration of the social interests at stake, the fifth Restatement 

factor, likewise weighs heavily in favor of Defendants given the First Amendment 

protections afforded to the news and society’s interest in obtaining balanced 

reporting. 

 51 See WaveDivision Holdings, LLC, 49 A.3d at 1174. 
17

In terms of the proximity or remoteness of Defendants’ conduct to the 

alleged interference, the deposition testimony belies Plaintiffs’ contention that the 

Broadcast directly interfered with Images’ prospective customers. While 

Plaintiffs’ Complaint alleges five of six customers scheduled for appointments the 

day after the Broadcast cancelled, Mr. Prentice’s deposition reveals that there is no 

evidence anyone cancelled that day because of the Broadcast and that at least nine 

customers did in fact come into Images for appointments that day.52 Moreover, 

when asked if she could name a single customer who avoided Images or stopped 

doing business there as a result of the Broadcast, Mrs. Prentice responded she 

could not identify any and all she knew was that Images “didn’t get calls” like it 

did after the paid advertisements.53 As such, this factor also weighs in favor of 

finding Defendants did not act improperly.

Finally, the Court must consider the relationship between the parties 

involved. Defendants role was that of a public news source, Plaintiffs were 

voluntary participants in Defendants’ report, and those who viewed the Broadcast 

were Defendants’ audience, some of which included Plaintiffs’ prospective 

customers. This was not a situation where Plaintiffs paid Fox to advertise its 

services, like they arranged with other networks on previous occasions, and Fox 

was under no obligation to tailor its Broadcast to Plaintiffs’ liking. Even if 

 52 Tom Prentice Dep., at 232-33. 

53 Paulette Prentice Dep., at 56. 
18

Defendants’ broadcast could be characterized as “interfering” with Plaintiffs’ 

business, such interference was for the purpose of furthering their legitimate 

interest in relaying pertinent and well-balanced information to its viewership. 

Thus, this factor also weighs in favor of finding Defendants did not act improperly. 

Based on the foregoing, the Court concludes as a matter of law that any 

interference Defendants may have had with Plaintiffs’ prospective business was 

justified, or not improper. As such, Defendants are entitled to summary judgment 

on Plaintiffs’ tortious interference claim.

II. First Amendment & Tortious Interference 

Defendants also advance the argument that the First Amendment prohibits 

this Court from finding Defendants liable for tortious interference based on their 

non-defamatory broadcast. While the protections afforded by the First 

Amendment are broad, particularly in how the news is reported, the Court need not 

decide this issue because it has granted summary judgment on the grounds that 

Defendants’ conduct was not improper. 

CONCLUSION

The Court has been extremely patient and has provided Plaintiffs a full 

opportunity to explore through discovery their tortious interference allegations. At 

best, Plaintiffs here were naive to believe that Fox news would do nothing more 

than a “flouf” piece and not investigate the MEP-90 system beyond Plaintiffs’ own 
19

comments. While they may feel they were mislead and their business unfairly 

portrayed, such sentiments do not provide a basis to legally challenge the 

Broadcast. The piece obviously was not what Plaintiffs had hoped for but, by 

entering the public forum, they opened Images and the hair loss treatment it 

provides to critical review. No wrongful conduct occurred here. Summary 

judgment is hereby entered in favor of Defendants.

IT IS SO ORDERED.

/s/ William C. Carpenter, Jr. 

Judge William C. Carpenter, Jr.