1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0360P (6th Cir.)

File Name: 03a0360p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

AMWAY CORPORATION,

Plaintiff-Appellant,

v.

THE PROCTER & GAMBLE

COMPANY; PROCTER &

GAMBLE DISTRIBUTING

COMPANY; DINSMORE &

SHOHL, LLP,

Defendants-Appellees,

SIDNEY SCHWARTZ; KENNETH

LOWNDES,

Defendants.

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No. 01-2561

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 98-00726—Robert Holmes Bell, Chief District Judge.

Argued: June 12, 2003

Decided and Filed: October 8, 2003 

2 Amway Corp. v. Procter

& Gamble Co., et al.

No. 01-2561

*

The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation.

Before: BATCHELDER and CLAY, Circuit Judges;

SCHWARZER, Senior District Judge.*

_________________

COUNSEL

ARGUED: Charles L. Babcock, JACKSON WALKER,

Houston, Texas, for Appellant. Daniel J. Stephenson,

DYKEMA GOSSETT, Ann Arbor, Michigan, Stephen M.

Shapiro, MAYER, BROWN, ROWE & MAW, Chicago,

Illinois, for Appellees. ON BRIEF: Charles L. Babcock,

David T. Moran, JACKSON WALKER, Houston, Texas, J.

A. Cragwall, Jr., WARNER, NORCROSS & JUDD, Grand

Rapids, Michigan, Jack C. Berenzweig, James P. Sobieraj,

BRINKS, HOFER, GILSON & LIONE, Chicago, Illinois, for

Appellant. Daniel J. Stephenson, Michael P. Farrell,

DYKEMA GOSSETT, Ann Arbor, Michigan, Kathleen

McCree Lewis, Donald S. Young, DYKEMA GOSSETT,

Detroit, Michigan, Eric C. Lund, DYKEMA GOSSETT,

Grand Rapids, Michigan, Stephen M. Shapiro, MAYER,

BROWN, ROWE & MAW, Chicago, Illinois, Stanley M.

Chesley, Fay E. Stilz, WAITE, SCHNEIDER, BAYLESS &

CHESLEY, Cincinnati, Ohio, John M. Kunst, Jr., John W.

Beatty, Brian S. Sullivan, DINSMORE & SHOHL,

Cincinnati, Ohio, John M. DeVries, MIKA, MEYERS,

BECKETT & JONES, Grand Rapids, Michigan, for

Appellees. David L. Marburger, BAKER & HOSTETLER,

Cleveland, Ohio, for Amici Curiae.

BATCHELDER, J., delivered the opinion of the court, in

which CLAY, J., joined. SCHWARZER, D. J. (pp. 17-21),

delivered a separate concurring opinion.
No. 01-2561 Amway Corp. v. Procter

& Gamble Co., et al.

3

_________________

OPINION

_________________

ALICE M. BATCHELDER, Circuit Judge. Plaintiff

Amway Corporation (“Amway”) appeals from the district

court’s order granting summary judgment in favor of

defendants The Procter and Gamble Company, The Procter

andGambleDistributing Company (collectively “P&G”), and

the law firm of Dinsmore & Shohl (“Dinsmore”) (P&G and

Dinsmore collectively “Appellees”), in Amway’s diversity

action raising a Michigan state-law claim of “tortious

interference with contract and with actual and prospective

business relations,” over the publication on the internet of an

allegedly defamatory complaint filed by P&G in federal court.

Following the close of extensive discovery in this corporate

grudge match, which included the depositions of some eighty

witnesses, the district court found that there was no evidence

of a conspiracy between the Appellees and the other

defendants to publish the complaint; that Amway had failed

to show that the Appellees acted with actual malice; and, in

the alternative, that the Appellees’ actions were protected by

Michigan’s “fair reporting privilege.” On appeal, Amway

argues that, because the Appellees engaged in commercial

speech, Amway does not need to prove actual malice in this

case; that questions of material fact exist as to the existence

of a conspiracy; and that Michigan’s reporting privilege for

public documents does not protect parties such as P&G and

Dinsmore who participated in both the filing of the

documents in a court proceeding and the publication of those

court documents on the internet. Because we find that the

Michigan fair reporting privilege does apply to the Appellees’

presumed publication of public court documents on the

internet, we will affirm the judgment of the district court.

4 Amway Corp. v. Procter

& Gamble Co., et al.

No. 01-2561

PROCEDURAL HISTORY

This case represents the third lawsuit in what the district

court below correctly described as “a long history of

corporate warfare between Amway and P&G.” Amway

originally brought this action against P&G, alleging tortious

interference with business relations, after Sidney Schwartz

(“Schwartz”), the creator and editor of an anti-Amway

website entitled Amway: The Untold Story, published a

complaint filed by P&G against Amway in a Texas federal

district court, alleging, among other things, that Amway

operates as an illegal pyramid scheme. Amway amended its

complaint to add Dinsmore, Schwartz, and Kenneth Lowndes

(“Lowndes”) as defendants.

P&G, Dinsmore, and Schwartz moved for summary

judgment, arguing that the website was protected speech; that

Amway was a public figure and needed to prove actual

malice; that there was no evidence that the defendant’s

actions interfered with any of Amway’s business

relationships; and that Amway could not prove the existence

of a conspiracy among the defendants. Amway filed a 119-

page brief in opposition to the motion, with more than 200

exhibits, arguing that sufficient evidence existed for a

reasonable trier of fact to find in Amway’s favor. The district

court, who had jurisdiction over this diversity action pursuant

to 28 U.S.C. § 1332, entered an Order and Partial Judgment

granting Appellees’ motions for summary judgment, but

denied Schwartz’s motion after finding him to be in a

“completely different posture” than P&G and Dinsmore.

Amway and Schwartz subsequently “settled theirdifferences”

and entered into a stipulation dismissing all claims and

counterclaims between them. The district court made its

summary judgment order final by entering a default judgment

against Lowndes, who was the last defendant remaining

before the district court. Amway timely appealed “the Order

and Partial Judgment and all prior rulings in this action,” as

well as an order denying its motion “to supplement the record
No. 01-2561 Amway Corp. v. Procter

& Gamble Co., et al.

5

1

P&G manufacturers and distributes numerous products for personal

care, household use, and consumption, including detergents, cosmetics,

and cleaning agents.

2

Amway also sells numerous consumer products that are in direct

competition with P&G products. Amway sells through a network of

distributors, who in turn sell the products to other distributors and

consumers.

3

The most common version of the rumor involves P&G’s President’s

appearing on a contemporary television talk show, from Merv Griffin to

Oprah Winfrey, and confessing that profits from P&G go to support the

Church of Satan.

in opposition to Defendant’s summary judgment motions.”

This Court has jurisdiction to hear this appeal pursuant to 28

U.S.C. § 1291.

FACTUAL BACKGROUND

Recitation of the extensive and hate-filled history between

P&G1 and Amway2 would take a writing as long as both the

Old and New Testaments and involve at least one of the Good

Book’s more prominent players. Although each side would

likely argue, if given the chance, that its opponent was in the

garden advising the serpent when Eve took her first bite of the

apple, for our purposes we need only go back to the 1970s

and Satan’s rumored more recent activity with and interest in

soap products.

For more than twenty years, rumors of a relationship

between Lucifer and the soap manufacturer P&G—some

spread by Amway’s distributors—have circled the globe,

dogging P&G like a hound of hell “despite every effort to

eliminate [the rumors] through both public relations and

litigation.” See Procter & Gamble Co. v. Haugen, 222 F.3d

1262, 1267-69 (10th Cir. 2000) (“Haugen I”).3 The 1990s

and the widespread use of the internet brought a resurgence of

6 Amway Corp. v. Procter

& Gamble Co., et al.

No. 01-2561

the rumor throughout the world. Following this new

“outbreak,” P&G learned that Randy Haugen, an Amway

distributor in Utah, had broadcast an audio version of the

rumor via Amway’s internal business communicationssystem

in 1995. In 1996, P&G brought suit against Haugen and

Amway in the Federal District Court of Utah, Procter &

Gamble Co. v. Haugen, No. 1:95-CV-0094, 1998 U.S. Dist.

LEXIS 22984 (D. Utah Sept. 4, 1998), “claiming that as a

result of the subject message and other similar missives

disseminated by defendants, P&G lost customers concerned

about supporting Satan through their purchase of P&G

products.” Haugen I, 222 F.3d at 1269. The district court

granted Amway’s motion for summary judgment, finding that

the message did not relate to qualities or characteristics of

P&G’s products and, therefore, the claim fell outside the

ambit of the Lanham Act. Id. at 1267. The Tenth Circuit

agreed with the district court’s holding, but nonetheless

reversed the district court, deciding that the lower court

should also look at whether the subject message was clearly

related to P&G’s “commercial activities,” a question the

appellate court admitted P&G failed properly to raise below.

Id. at 1272. On remand, the district court dismissed all of

P&G’s claims that remained. Procter & Gamble Co. v.

Haugen, 158 F. Supp. 2d 1286 (D. Utah 2001), and the Tenth

Circuit affirmed. Procter & Gamble Co. v. Haugen, 317 F.3d

1121 (10th Cir. 2003) (“Haugen II”).

While searching for information on the Amway

Corporation during the prosecution of the Utah suit, an

attorney at Dinsmore who was representing P&G in that

action discovered the website created and maintained by

Schwartz, a self-described “long-time Amway opponent.”

The website contained extensive information and

documentation on Amway. Schwartz had maintained his site

for eight months and accumulated thousands of pages of news

articles, emails, and court documents from cases filed against

Amway. In October of 1996, Dinsmore attorneys met with

Schwartz at his Oregon home and retained him as a “non-
No. 01-2561 Amway Corp. v. Procter

& Gamble Co., et al.

7

4

Dinsmore retained Schwartz from November, 1996, through

January, 1998, at a rate of $25.00 per hour for his time, and they

reimbursed him for any copying costs. In total, P&G, through Dinsmore,

paid Schwartz $2,704.11 before terminating the relationship.

5

Over the years, Amway has also suffered from allegations that,

because of its corporate structure and distributor network, Amway

operates as an illegal pyramid scheme. In 1979, in response to these

allegations, and following a four-year investigation and an administrative

trial, the Federal Trade Commission determined that Amway was not an

illegal pyramid. In re Amway, 93 F.T.C. 618, 631, 716-17 (1979).

testifying consultant,” to assist Dinsmore in “obtaining

evidence and information about Amway that might be useful

in the Utah litigation, and to provide leads concerning other

potential sources of such evidence.”4 To aid Schwartz’s

ability to assist in the Utah proceedings, Dinsmore provided

Schwartz with copies of some of the filings in the Utah case,

as well as copies of public filings in two other cases: Cairns

v. Amway Corp., No. C-1-84-0783 (S.D. Ohio 1984), and

Setzer v. Amway Corp., No. 6:86-1898-3 (D.S.C. 1986).

P&G discovered in the course of the Utah litigation that

Haugen’s dissemination of the rumor of P&G’s satanic

connections extended into Texas. P&G eventually brought

suit in Texas, alleging claims almost identical to the claims

brought in the Utah case, and also claiming fraud and specific

violations of the RICO Act stemming from Amway’s

allegedly illegal pyramid structure. Procter & Gamble Co. v.

Amway Corp., 80 F. Supp. 2d 639 (S.D. Tex. 1999).5 The

Texas district court dismissed a majority of P&G’s claims on

res judicata grounds following the dismissal of the factually

similar claims by the Utah district court. The Texas district

court dismissed the remaining claims on several other

grounds, including standing and the expiration of state

statutes of limitation. Although the Fifth Circuit affirmed

part of the district court’s dismissal of P&G’s claims, the

circuit court reversed a majority of the district court’s

8 Amway Corp. v. Procter

& Gamble Co., et al.

No. 01-2561

6

Schwartz states in his deposition that P&G agreed to reimburse his

copying expense for the Texas complaint, and that he prepared an invoice

that he sent to Dinsmore. In the record, an attorney for Dinsmore admits

receiving the invoice but claims payment was never authorized. The

record contains no definitive proof of whether Schwartz was in fact

reimbursed. For summary judgment purposes, we will assume Dinsmore

paid the invoice.

holding, including the judgment based upon res judicata, the

dismissal of P&G’s Lanham Act claims, and the dismissal of

P&G’s civil RICO claims. See Procter & Gamble Co. v.

Amway Corp., 242 F.3d 539, 567 (5th Cir. 2001). It appears

from the record that the remaining claims in this case were

scheduled for trial in January of 2003, but it is unclear from

the parties’ briefs whether there has been any conclusion to

the proceedings.

At some point after P&G filed its lawsuit in Texas,

Schwartz asked Dinsmore for a copy of the Texas complaint.

After Dinsmore refused to supply Schwartz with any

documents filed in the Texas litigation, Schwartz obtained a

copy of the complaint on his own and billed Dinsmore for his

copying expenses.

6

 Schwartz eventually posted the entirety

of some of the documents from the earlier cases—including

the Setzer complaint—that Dinsmore had provided him, as

well as the Texas complaint he had obtained on his own.

In the present action, Amway identified ninety-nine

statements published on Schwartz’s website that it claims are

falsehoods. Of those, eighteen were attributable to the

Appellees. These eighteen statements include sixteen

paragraphs in the Texas complaint, involving allegations that

Amway is an illegal pyramid scheme and that Amway

violated the RICO Act, and two statements in the complaint

filed in the Setzer case, in which neither P&G nor Dinsmore

was involved. Amway concedes that both complaints are

public documents filed in a federal district court and available

to the public.
No. 01-2561 Amway Corp. v. Procter

& Gamble Co., et al.

9

ANALYSIS

Standard of Review

We review a district court’s grant of summary judgment de

novo, using the same standard under Rule 56(c) used by the

district court, Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.

1999) (en banc), and we consider the record as it stood before

the district court at the time of its ruling. Niecko v. Emro

Marketing Co., 973 F.2d 1296, 1303 (6th Cir. 1992).

Summary judgment is proper if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” FED. R. CIV. P. 56(c). We

view the evidence, all facts, and any inferences that may be

drawn from the facts in the light most favorable to the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). To withstand

summary judgment, the non-movant must present sufficient

evidence to create a genuine issue of material fact. Klepper

v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). A mere

scintilla of evidence is insufficient; “there must be evidence

on which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986). Entry of summary judgment is appropriate

“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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Amway’s Claim

Amway asserts that Schwartz and Appellees conspired to

disrupt the business structure and relationships of Amway by

disseminating untrue allegations. Similar to P&G’s

complaint against the Plaintiff, Amway’s complaint here

claims that the Appellees’ conduct cost Amway business and

10 Amway Corp. v. Procter

& Gamble Co., et al.

No. 01-2561

was undertaken with a malicious and manifest disregard for

the rights of Amway. The district court, clearly frustrated

with both parties, narrowed its focus in this case down to

what it believed to be the key issue before it—Amway’s

effort to recover damages for a speech tort committed by

Appellees. The court’s opinion correctly focuses on the fact

that Amway’s only allegation involves the Appellees’ action

of giving the documents to Schwartz with the intent that the

documents would be posted on the internet. In finding for the

Appellees, the court made several observations: (1) the

evidence does not support a finding of a conspiracy; (2) not

every document allegedly provided by the Defendants is at

issue in the case; (3) Amway attributes only eighteen

allegedly defamatory statements to the Defendants; (4) all the

posted documents were publically available; (5) none of the

allegedly defamatory statements is new; (6) Amway is a

public figure; and (7) the suit is really about business

competition and bad blood rather than about the spread of

rumors or the published attacks. The court went on to find

that the relationship between Schwartz and the Appellees was

not so irregular as to require an inference of a conspiracy

under Michigan law, and Amway failed to provide any actual

evidence of an agreement between the parties indicating their

desire to interfere with Amway’s business relations.

Additionally, the court found that the speech alleged to be

defamatory was privileged and subject to First Amendment

protections, and that Amway—as a public figure—failed to

prove not only that the speech was false, but that the

Defendants acted with malice or with the knowledge that their

statements were false or made with reckless disregard of

whether they were false. Finally, the district court granted the

Defendants’ motion for summary judgment by applying

Michigan’s fair reporting privilege, which protects

individuals who fairly and accurately report information that

substantially represents matters contained in court records.
No. 01-2561 Amway Corp. v. Procter

& Gamble Co., et al.

11

7

First Amendment protections apply in a tortious interference action

when the action complained of was defamatory speech. It is therefore

consistent to apply the fair reporting privilege to a claim for torious

interference that is based upon defamatory speech. See Meyer v. Hubbell,

324 N.W.2d 139, 144 (Mich. App. 1982) (noting that in a claim for

defamation, the absolute judicial proceeding privilege would also apply

to a related claim of tortious interference). 

Michigan Fair Reporting Privilege

Under the Michigan statute:

Damages shall not be awarded in a libel action for the

publication or broadcast of a fair and true report of

matters of public record, a public and official proceeding,

or of a governmental notice, announcement, written or

recorded report or record generally available to the

public, or act or action of a public body, or for a heading

of the report which is a fair and true headnote of the

report. This privilege shall not apply to a libel which is

contained in a matter added by a person concerned in the

publication or contained in the report of anything said or

done at the time and place of the public and official

proceeding or governmental notice, announcement,

written or recorded report or record generally available to

the public, or act or action of a public body, which was

not a part of the public and official proceeding or

governmental notice, announcement, written or recorded

report or record generally available to the public, or act

or action of a public body.

MCLA § 600.2911(3).7 Amway does not dispute that, under

this law, a verbatim reproduction of a public court document

would be privileged. Rather, Amway argues that P&G and

Dinsmore—who created the complaint in the Texas litigation

12 Amway Corp. v. Procter

& Gamble Co., et al.

No. 01-2561

8

For purposes of this argument, we assume the Defendants

“published” the documents on Schwartz’s website. 

and participated in the publication of the documents on

Schwartz’s website—are not protected by the privilege.8

In support of its position, Amway cites Park v. Detroit Free

Press Co., 40 N.W. 731 (Mich. 1888), where the Michigan

Supreme Court said, “[i]f pleadings and other documents can

be published to the world by any one who gets access to

them, no more effectual way of doing malicious mischief with

impunity could be devised than filing papers containing false

and scurrilous charges, and getting those printed as news.”

Id. at 734. The Park decision is consistent with the reporting

privilege contained in the Second Restatement of Torts.

Section 611 of the Second Restatement provides:

The publication of defamatory matter concerning another

in a report of an official action or proceeding or of a

meeting open to the public that deals with a matter of

public concern is privileged if the report is accurate and

complete or a fair abridgement of the occurrence

reported.

RESTATEMENT (SECOND) OF TORTS § 611. This privilege,

however, is not absolute. Similar to the court’s language in

Park, Comment c provides, in relevant part:

A person cannot confer this privilege upon himself by

making the original defamatory publication himself and

then reporting to other people what he had stated. This is

true whether the original publication was privileged or

not. Nor may he confer the privilege upon a third person,

even a member of the communications media, by making

the originalstatement under a collusive arrangement with

that person for the purpose of conferring the privilege

upon him.
No. 01-2561 Amway Corp. v. Procter

& Gamble Co., et al.

13

RESTATEMENT (SECOND) OF TORTS § 611 cmt. c. If the

publication involves some form of judicial proceeding, there

must be official action in the proceeding before one can

invoke the privilege:

A report of a judicial proceeding implies that some

official action has been taken by the officer or body

whose proceedings are thus reported. The publication,

therefore, of the contents of preliminary pleadings such

as a complaint or petition, before any judicial action has

been taken is not within the rule stated in this Section.

An important reason for this position has been to prevent

implementation of a scheme to file a complaint for the

purpose of establishing a privilege to publicize its

content and then dropping the action. (See Comment c).

It is not necessary, however, that a final disposition be

made of the matter in question; it is enough that some

judicial action has been taken so that, in the normal

progress of the proceeding, a final decision will be

rendered. So too, the fact that the proceedings are ex

parte rather than inter partes is immaterial if the matter

has come officially before the tribunal and action has

been taken in reference to it.

RESTATEMENT (SECOND) OF TORTS § 611 cmt. e (emphasis in

original). Although P&G did not withdraw its complaint in

the Texas litigation after it was published on the website

(indeed, P&G appears to have pursued that action well

beyond the publication), Amway argues that Comment e still

expresses a concern for the exact situation found in this case.

Amway also relies upon a case from Illinois which applied

the same type of fair reporting privilege and invoked the

Second Restatement. In Kurczaba v. Pollock, 742 N.E.2d

425, 442-43 (Ill. App. Ct. 2000), the court held that the fair

reporting privilege does not apply to a defendant who sought

to confer the privilege upon himself by filing a complaint and

then “reporting” the complaint to others.

14 Amway Corp. v. Procter

& Gamble Co., et al.

No. 01-2561

Amway also turns to the grammatical structure of the

statute. Specifically, Amway argues that the parallel use of

two “contained in” clauses separated by “or,” demonstrates

two distinct categories that are in the disjunctive.

Furthermore, Amway claims the clause “which was not part

. . .” modifies the last antecedent and not the former. See Sun

Valley Foods Co. v. Ward, 596 N.W.2d 119, 123 (Mich.

1999) (“It is a general rule of grammar and of statutory

construction that a modifying word or clause is confined

solely to the last antecedent, unless a contrary intention

appears.”). Accordingly, under Amway’s interpretation, the

Defendants cannot find protection under the fair reporting

privilege. We are not persuaded.

The exception to the privilege reads:

This privilege shall not apply to a libel which is

contained in a matter added by a person concerned in the

publication or contained in the report of anything said or

done at the time and place of the public and official

proceeding or governmental notice, announcement,

written or recorded report or record generally available to

the public, or act or action of a public body, which was

not a part of the public and official proceeding or

governmental notice, announcement, written or recorded

report or record generally available to the public, or act

or action of a public body.

MCLA § 600.2911(3). The statute excepts from the privilege

libels that are not a part of the public and official proceeding

or governmental notice, written record or record generally

available to the public. These libels are of two kinds: (1) a

libel which is “contained in a matter added by a person

concerned in the publication,” or (2) a libel which is

“contained in the report of anything said or done at the time

and place of the public and official proceeding or

governmental notice, announcement, written or recorded

report or record generally available to the public, or act or
No. 01-2561 Amway Corp. v. Procter

& Gamble Co., et al.

15

9

The Michigan legislature amended the fair reporting statute

following the state supreme court’s decision in Rouch, addressing what

the legislature felt was the supreme court’s too narrow definition of

“official proceeding.” See Northland Wheels Roller Skating Ctr. v.

Detroit Free Press, 539 N.W.2d 774, 778 n.4 (Mich. App. Ct. 1995). The

Michigan Supreme Court’s decision not to use the Second Restatement

remains applicable to our interpretation of the amended statute.

action of a public body.” Contrary to Amway’s belief, “or”

in this statutory section is used as a coordinating conjunction

to connect the two kinds of libel, see HARBRACE COLLEGE

HANDBOOK 16 (John C. Hodges, et al. eds., rev. 12th ed.

1994) (coordinating conjunctions, including “or,” join two

clauses of equal grammatical rank); and both kinds of libel

are plainly modified by the clause “which was not a part of

the public and official proceeding or governmental notice,

announcement, written or recorded report or record generally

available to the public, or act or action of a public body,” and

both are plainly included in the exception. Assuming that

any allegations in the Texas complaint or the Setzer

complaint—or both—were libelous, the libel was included in

the actual complaint and the Appellees did not add any

statements, let alone false statements, when they supposedly

published the complaint on the internet. Accordingly, we find

that Michigan’s fair reporting privilege applies to the

publication of the entire complaints on Schwartz’s website,

and no exception to the privilege applies to the Appellees’

conduct complained of here.

Because we find that the plain language of the statute

clearly directs our decision, we find no reason to consider the

Second Restatement. See Rouch v. Enquirer & News of

Battle Creek, 398 N.W.2d 245, 250 (Mich. 1986) (noting that

the Second Restatement is not helpful in interpreting

Michigan’s fair reporting statute).9 Generally speaking, a

party’s publication of any actual court filing or statement

made in a judicial proceeding is privileged because the public

has a legitimate interest in accessing and viewing that type of

16 Amway Corp. v. Procter

& Gamble Co., et al.

No. 01-2561

information. Amway brings suit for injuries claimed under a

state-created tort, but the state has seen fit to codify a general

privilege and not to except from it the kind of conduct alleged

in this case. The state has not, contrary to Amway’s

arguments, limited that privilege in a way that exposes the

Defendants to liability.

Finally, we consider Amway’s reliance upon Park

misplaced. Court filings were not public records in Michigan

when Park was decided more than one hundred years ago.

See In re Midland Pub. Co., 362 N.W.2d 580, 586 (Mich.

1985) (noting that the decision in Park was premised on the

reasoning that pleadings in private actions were not public

records).

Accordingly, we hold that the conduct of P&G and

Dinsmore was protected by the Michigan fair reporting

privilege, and on that basis, we affirm the judgment of the

district court dismissing this action. Having thus decided, we

decline to address the commercial speech issues argued by the

parties.

Amway and P&G have each now prevailed against the

other at the appellate level in the federal courts. Although no

decision from this Court—or any other, we predict—will end

the hatred these two corporate giants harbor for each other,

we hope that they will consider the impact of their continuing

legal battle on the scarce resources of the courts, and decide

to concentrate their creative talents on the more traditional

methods of gaining competitive advantage and declare a

ceasefire in the judicial arena.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.
No. 01-2561 Amway Corp. v. Procter

& Gamble Co., et al.

17

1

Quoted at Op. 14, above.

_____________________

CONCURRENCE

_____________________

WILLIAM W SCHWARZER, Senior District Judge,

Concurring. The application of Michigan’s Fair Reporting

Statute, Michigan Compiled Laws § 600.2911(3) (2003),1 to

the facts of this case presents a question of first impression.

Neither the Michigan Supreme Court nor any other court has

issued a reported decision on the issue before us: whether the

privilege applies to a party’s publication of a complaint it has

filed in court. Our task is to predict how the Michigan

Supreme Court would decide the issue. Mills v. GAF Corp.,

20 F.3d 678, 681 (6th Cir. 1994).

In an early case, Park v. Detroit Free Press Co., 40 N.W.

731 (Mich. 1888), the Supreme Court addressed the validity

of a statute which limited the liability of newspapers for

publication of defamatory matter in the absence of bad faith

and upon a prompt retraction. In dictum, the court referred to

testimony concerning the newspaper reporters’ difficulty in

getting access to the judges’ files and added:

One of the reasons why parties are privileged from suit

for accusations made in the pleadings is that the

pleadings are addressed to courts where the facts can be

fairly tried, and to no other readers. If pleadings and

other documents can be published to the world by any

one who gets access to them, no more effectual way of

doing malicious mischief with impunity could be devised

than filing papers containing false and scurrilous charges,

and getting those printed as news. The public have no

rights to any information on private suits till they come

up for public hearing or action in open court; and when

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It read, in relevant part: “No damages shall be awarded in any libel

action brought against a reporter, editor, publisher, or proprietor of a

newspaper for publication in it of a fair and true report of any public and

official proceeding . . . .” Rouch, 398 N.W.2d at 248.

any publication is made involving such matters, they

posses no privilege . . . .

40 N.W. at 734.

The Park decision, an echo from a distant past, antedates

the adoption of § 600.2911, which clearly recognized the

public’s “rights to . . . information on private suits” when they

are filed. See In re Midland Publ’g Co., 317 N.W.2d 284,

288 (Mich. 1982) (stating that “Michigan has long recognized

a common-law right to access to public records.”). Thus,

Park sheds no light on the scope of the statutory privilege.

As originally enacted in 1931, § 600.2911(c) protected only

reporters, editors, publishers, or proprietors of newspapers.

2

Rouch v. Enquirer & News of Battle Creek, 398 N.W.2d 245,

248 (Mich. 1987). Following that decision, in 1988 the

statute was amended to significantly enlarge its scope. See

Northland Wheels Roller Skating Center, Inc. v. Detroit Free

Press, Inc., 539 N.W.2d 774, 777 (Mich. App. 1995). Thus,

as amended, it no longer was limited to “public and official

proceeding[s]” but applied as well to reports of “matters of

public record,” and its protection extended to anyone against

whom damages might be awarded in a libel action for a

publication or broadcast, not simply members of the

newspaper trade. While pre-amendment the statute would

have afforded no protection to defendants in this case, the

amendment plainly protects them for publishing a fair and

true report of a matter of public record.

Amway contends nevertheless that defendants fall within

the statute’s exception for libel “which is contained in a
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3

 The exception reads: 

This privilege shall not apply to a libel which is contained in a

matter added by a person concerned in the publication or

contained in the report of anything said or done at the time and

place of the public and official proceeding or governmental

notice, announcement, written or recorded report or record

generally available to the public or act or action of a public

body, which was not part of the public and official proceeding

or governmental notice, announcement, written or recorded

report or record generally available to the public or act or action

of a public body.

matter added by a person concerned in the publication.”3 It

argues that defendants authored the defamatory statements in

the complaints and, having arranged for their dissemination

on the internet, were persons concerned in their publication.

It argues further that the qualifying clause, limiting the

exception to matter “which was not part of the public and

official proceeding” applies only to the second part of the

exception dealing with reports of official proceedings. The

argument is unavailing. As the district court found, it was

undisputed that all the documents defendants provided and

that were published were publicly available court documents.

Dist. Ct. Op., Jt. App. 652. These documents were verbatim

copies of what was in the court files, and thus they were

“accurate reports of matters of public record.” Id. at 677, 680.

And all of the allegedly defamatory statements came from

these complaints in the court files. Id. at 652.

Amway contends that the publication of the complaints,

though accurate, did not qualify as a fair and true report

because it failed to present Amway’s side of the matters

alleged in the complaints. Moreover, Amway charges that

defendants abused the privilege because they acted to further

their anti-Amway motives. The statute cannot be read to

require the publisher to give equal time to opponents of what

is in the public record. To make the reporting privilege

conditional on a balanced presentation, as Amway argues,

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Quoted at 13, above.

5

For that reason, cases decided under the Restatement’s rule are not

relevant. See, e.g., Kurczaba v. Pollock, 742 N.E.2d 245, 442-43 (Ill.

App. Ct. 2000).

would eviscerate it. What the statute requires is that matters

of public record be reported fairly and truthfully, i.e., that the

report is not “so edited and deleted as to misrepresent the

proceeding and thus be misleading.” See Doe v. Doe, 941

F.2d 280, 289 (5th Cir. 1991) (quoting RESTATEMENT

(SECOND) OF TORTS § 611 cmt. f). So long as those

conditions are met, motive is irrelevant. Stablein v. Schuster,

455 N.W.2d 315, 317 (Mich. App. 1990) (stating that “the

statute makes it clear that defendant’s motivation is irrelevant

if a fair and true report is made of the proceeding.”).

Amway further contends that defendants are excluded from

the privilege under the RESTATEMENT (SECOND) OF TORTS.

It cites § 611 comment c, which states that a person cannot

confer the privilege upon himself by making the original

defamatory publication himself and then reporting to other

people what it had stated, even if the original publication was

privileged. It also cites comment e, stating that “[t]he

publication . . . of the contents of preliminary pleadings such

as a complaint or petition, before any judicial action has been

taken is not within the rule stated in this Section.”4 The

argument is inapposite. Defendants claim the fair reporting

privilege under § 600.2911(3), not under the Restatement.

Moreover, because the Michigan statute and the Restatement

are not coextensive, citation to the Restatement “is not helpful

in [the court’s] effort to interpret the statute.” Rouch, 398

N.W.2d at 250 (stating that the Restatement’s “official

action” privilege is broader than the statute’s privilege to

report “public and official proceedings.”).5
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6

 See Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 239 (Tex.

App. 2000) (stating that “[t]he harm resulting to a defamed party from

delivery of pleadings in a lawsuit to the news media could

demonstratively be no greater than if the news media found the pleadings

on their own.”).

Amway’s contention that the fair reporting privilege

protects only third parties is thus at odds with the plain

language of the statute and contrary to common sense.

Suppose the Wall Street Journal’s reporter copies a complaint

on file and then reports on it in a story. The privilege would

apply to him. But suppose that instead he writes his story on

the basis of the complaint given to him by the plaintiff after

it has been filed. The reporter would still be entitled to the

privilege. It makes no sense to extend it to him but to subject

the plaintiff to liability for giving him the complaint.6 Or

suppose the plaintiff, or perhaps her lawyer, is interviewed on

a news program and responds with a fair and true summary of

the complaint’s allegations. Surely it makes no sense to

interpret the statute so as to extend the privilege to the

interviewer but not to the interviewee.

 For these reasons, I join in the affirmance of the judgment.