1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0360P (6th C ir.) File Name: 03a03 60p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
A MWAY C ORPORATI ON ,

Plaintiff- Appellant

,

v.

T HE P ROCTER & G AMBLE C OMPANY ; P ROCTER & G AMBLE D IS TRIB UTING C OMPANY ; D INSMORE & S HOHL , LL

P, Defenda nts-Appe llees,

S IDNEY S CHWARTZ ; K ENNET H L OWNDES , Defenda nts. X - - - -
> , - - - - - - - - - - - - N No. 01-2561

Appeal from the United States District Court for the We stern Dis trict of M ichiga n at Gran d 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 Honorab le William W S chwarzer, Senior Unit ed States Distr ict Judge for the Northern District of Californi a, sit

ting by designation. Befor e: BATCHELDE

R and CL AY, Circu

it Judges; SCHWARZER, Senior District Judge. *

_________________ COUNSEL

ARGUED: Cha

rle s L . Ba

bco ck, JA C KSON WAL KER, Houston, Texas, for Appellant. Daniel J. Stephenson, DYKEMA

GOSSETT , An n Arbor, Michiga n, Stephe n M. Shapiro, MAYER, BROWN, R O WE & MAW, Chicago, Ill inois, for Appellees. ON BRI EF: Charles L. Babcoc k, David T. Moran, JA CKSO

N WALK ER, Hou sto n, T exa s, J. A. Cragwall, Jr., W ARNER, NORCROSS & JUDD, Grand Rapids, Michigan, Jack C. Beren zweig, James P. Sobie raj, BRI NKS, HOFER, GIL SON & LI ONE, Chicago, Illinois, for Appellan t. Daniel J. S tephenson, Michae l P. Farr ell, DYKEMA

GOSSETT, Ann A r

bor, Michigan, Kathleen McCree Lewis, Donald S. Youn g, DY KEMA GOSSETT, Detroit, Michigan, Eric C. Lund, DYK EMA GOS SET T, Grand Rapids, Michigan, S tephen M. Shapiro, M AYER, BROWN , ROWE & MAW, Chicag o, Ill inois, Stan ley M. Ch es le y, Fay

E. Sti lz, WAITE , SCHNEI DER, BAY

LESS & CHESLEY, Cincin

nat i, Ohi o, John

M. Kun st, Jr. , John W

. Be at ty, Bri an S . S ul li van , DIN SM ORE & SH OHL, Cincinnat i, Ohio, John M. DeV ries, MI KA, MEYERS, BECKETT & JONE S, Gr and Rapids, Michigan, for Appellee s. David L. Marburg er, BAKER & HOSTETLER, Cleveland, Ohio, for Amici Curiae.

BATCHELDER , J., deliver ed the opi nion of the

court, in whichCLAY, J., joined. SCHWARZER, D. J. (pp. 17-21), delivered a separate concur ring opinion.No. 01-2561 Amway Corp. v. Procter & Gamble Co ., et al. 3

_________________ OPINION

_________________ ALICE M. BATCHELDER, Circu it Ju dge. Plaintiff Amway Corporation (“Amway

”) appeals from the district court’s order g

ranting summary

ju dgm ent in favor of defenda nts The Pro cter and Gamble Company , The Procter
and Gamble Di stributing Company (collec tively “P&G” ), and the law firm of Dinsmore & Shohl (“Dinsmore”) (P&G and Dinsmore collecti

v ely “Appelle es”), in

Amway ’s diversity actionraising

a Michig an state -law cla im o f “ tortious interferencewith con tract and with actual and prospective businessrelations,” over

the publication onthe internet of an allege dly defamatory

com pl aint file d by

P&G in fe deral c ourt. Following the close

of extensive discove

ry in this co rporate grudge match, which

included the depos itions of some eigh ty witnesse s, the district court found that there was no evidence of a conspiracy

between the Appellees and the other defenda nts to publish the compla int; that Amway had failed to show that the Ap pellees acted with actua

l malice; and, in the alternative, that the Appellees’ actions were pr otected by Mic higan’s “fair r

eporting privileg e.” On a

ppeal, A mw a y argues that, because the Appellees enga ged in com mercial speech, Amway

does not ne ed to prove actua l malice i n this case; that questions of material fa ct exist as to the existence of a conspiracy ; and th at Michigan’s reporting privileg e for public document s does not protect p arti es su ch as P&G and Dinsmore wh o pa rticipated in both the filing of the document s in a court proceeding and the publication of those court documents on the internet. Because we find that the Michigan fair re porti ng priv ilege does apply to the App ellees’ presumed publicat ion of publ ic court docum ents on the internet, we will a

ffirm the judgmen t of the district cou

rt. 4 Amway Corp. v. Procter & Gamble Co ., et al. No. 01-2561

PROCEDURAL HISTORY

This case re

present s the third

lawsuit in

what t he dis trict court below correctly

described as “a long history of corpora te warfare between Amway and P &G .” Amway origina lly brough t this action against P&G, alleging tortious interferencewith busine ss relati ons, afte r Sidney Schwart z (“Schwartz”), the creator and edit or of an anti-Amway website entitled Amway: Th e Unto ld Story , published a complaint filed by P&G ag ainst Amw ay i n a Texas federal districtcourt, a

lleging , among

oth er things, that Amway operates as an illegal

pyramid scheme . Amway ame nded its complaint to add Dinsmore , Schwar

tz, and Ke nneth Lowndes (“L owndes” ) as def

endants.
P&G, Dinsm ore, and Schwartz moved for summary judgmen t, arguing that the website was prote cted speech; that Amway was a public figure and neede d to prove actual
ma lice; that there was no evidence that the defenda nt ’ s a ctio ns interfe

red with a

ny o f Amway ’s busine ss relation ships; and that Amway could not prove the existence of a consp i racy a

mong the defendants. Amway filed a 119- page brief in opposition to the motion, with more than 200 exhibits, arguing that sufficient evidenc e existedf or a reasona ble 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 Jud gment granting Appellee s’ motions for s ummary judgme nt, but denied Schwartz’s motion after finding him to be in a “completely

different posture” than P&G and Dinsmore. Amway and Schwartz subsequently “s ettled their d iffere nces” and entered into a

stipul ation dismissing all claims and counter claims betwee

n them. The

district c ourt made

its summary judgment order final by

entering a default judgment againstLowndes, who was the last defe ndant re m aining before the district court. Amway timely appealed “the Order and P ar tial Judgment and all prior rulings in this action,” as wellas an order de nyi ng its moti on “to supplement the recordNo. 01-2561 Amway Corp. v. Procter & Gamble Co ., et al. 5

1 P&G manufacturers and dist ribut es numerous products f or personal care, house hold u se, and con sump tion, including detergen ts, cosmetics, and clean ing agents.

2 Amway also sell s numerous cons ume r products that are in direct competi ti on with

P&G products. Amway sel ls thr ough a netw ork of distributors, who in turn sell the prod ucts to other dist ribu tors and

consum ers.

3 The most common versio n of the ru mor involve s P& G’s Pre siden t’s appeari ng on a con temp orar y television talk sho w, from M erv G riffin to Oprah W infrey, and confessi ng t hat pr ofits f rom P& G go to suppo rt the Church of Satan. inopposition

to Def endant’s summary judg

ment motions.” This Court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291.

FACTUAL BACKGROUND

Recitationof the extensive and hate-filled history between P&G 1 and Amway 2 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 pla ye rs. Althou

gh eac h side wou

ld likely argue, if given the cha

nce, that its opponent was in the garden advising the serpent

when Eve took

her first bite of the apple, for our purp oses we n eed only g o back to the 1970s and Satan’s rumored more recent activity with and in

terest in soap prod ucts.

For more tha n twenty

ye ars, rumors of a r

elationsh ip between Lucifer and t

he so ap manuf

acture r P&G—some spread by Amway ’s distributors—have circled the g lobe, dogging P&G like a hound of hel l “despit e every effort t o eliminate [the rumors] through both public relations and litigation.” See Proc ter & Gamble Co. v. Haugen , 222 F.3d 1262 , 1267-69 (10th Cir. 2000) (“ Haugen I ”). 3 The 199 0 s and the widespread use of the internet broug ht a resurgence of 6 Amway Corp. v. Procter & Gamble Co ., et al. No. 01-2561

the rumor throughout the world. Following thi s ne w “outbreak,” P&G learned that Randy Haugen, an

Amw ay distributor

in Utah, had

br oadcast an audio version of the
rum or via Amwa

y’ s interna

l business c ommunications sys

te m in1995. In 1996, P&G b rought suit against Haugen a nd Amway in th e Federal District Court of Utah, Procter & Gamble Co. v. Haugen , No. 1:95- CV-0094, 1998 U.S. D ist. LEXIS 22984 (D. Utah Se p t. 4, 1998) , “claimi

ng that a s a result of th e sub

ject message and other similar missives d isse minated

by defenda

nts, P&G lost customers concerned about suppo rting S atan t hrough t heir purchase o f P&G products.” Haugen I

, 22 2 F.3d at 1269. The district court granted Amway’s motion for

summary judgme

nt, finding that the message did not relate to qu aliti es or characteristics of P&G’s pr od ucts and, therefore, the claim fell outside the
am bit of the Lanham Act. Id . at 1267. The Tent h Ci rcui t agreed with the di strict co

urt’s hold

ing, but n

onethele ss reversed the district court, de ci ding that the lower court should also look at whe th er the su bject mes sage w as clea

rly rel at ed to P&G’s “commercial activities,” a question the appella te court admitted P&G failed properly to raise below. Id

. at 1272. On remand, the district co urt 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

& Gam ble Co. v. Haugen , 317 F.3d 1121 (10th Cir. 2003) ( “Haugen II ”).

Whil e s earching for information on the Amway Corporationduring t

he prose cution of the Utah suit, an attorney at Dinsmore who was repre senting P&G in that actiondis cov ered the website created and maintaine d by Schw artz, a self-described “long-t ime Amway opponent.” The webs ite containe d extensive information an d documentationon Amway . Schwar tz had maint

ained his site for eight months and

accumulated

thousands of pages of news article s, emails, and

court doc uments fr om cases filed ag ainst Am wa y. In Octobe r of 1996, Dinsmore attorne ys met with Sc hwartz at his Oregon home and retained him as a “ non-No. 01-2561 Amway Corp. v. Procter & Gamble Co ., et al. 7

4 Din smo re retained Schwartz fr om N ovember, 199 6, through Janu ary, 1 998 , at a rate o f $25 .00 p er ho ur for his tim e, and th e y reimburs ed him f

or any copying costs . In t otal, P&G , th rough Dinsmore, paid Sc hwart

z $2,704. 11 befor e te rmin ati ng the re lat ions hip.

5 Ov er the years, Amwa y has also suffered from allegations that
, because of i ts corp orat e st ruc tu re a nd di stri but or n etw ork, Am w ay op erates as anil lega l py rami d sche me. I n 1979, i n res ponse t o t hes e allegations, and f

oll owing a four-y ear i nves ti gati on and an administrat ive trial, the Federa l Trade Commission det ermined that Amway was not

an illegal pyr amid

. In re Amway , 93 F.T.C. 618 , 631, 716-17 (19 79). testifying consultant,” to assist Dinsmore in “o btai ning evidence and information about Amway that might be useful inthe Utah l itigati on, and to provide leads concerning other potential sourc es of such evidence.” 4 To aid Schwartz’s ability to assist in the Utah proceedings, Dinsmore provided Schwart z with copie s of some

of the filings in the Utah case,
as well as c opies of p

ublic fili ngs in tw o other c ases: Cairns

v. Amway Corp. , No. C-1-84-07 8 3 (S.D. Ohio 1984), and Setzer v. Amway Corp. , No. 6:86-1898-3 (D.S.C. 1986).

P&G discover

ed in the c ourse of

the Uta h liti gation that Haugen’s dissemination of the rumor of P&G’s satan ic connections exten ded into Texas. P&G eventually broug ht suit in Texas, alleging claims al most identi cal to the

claims brought in the Utah case, and also claiming fraud and specific violatio ns of

the RICO Act stemming from Amway ’s allege dly illegal pyr

amid structure . Procter

& Gamble

Co. v. AmwayCorp. , 80 F . Supp. 2d 639 (S.D. Tex. 1999). 5 The Texas district court

dismissed a majority of P&G’s c laims on
res judicat a gro unds following the dismissal o f the fa

ctually simila r claims by

the Utah d

istrict c ourt. The

Texas distr

ic t
c ourt d ismissed the remaining claims on several other ground s, including standinga nd the expir ation of s tate statutes of limitation. Although the Fifth Circuit affirmed part of the dis trict cou

rt’s dis missal of P&G’s claims, the circuit court reversed a majori ty of t he district court’s 8 Amway Corp. v. Procter & Gamble Co ., et al. No. 01-2561

6 Schw artz state s in his depo sition that P&G agreed to reimburse his copying expense f

or the Texas complaint , and t hat he pr epared an invoi ce that he se nt t o Dinsmor e. I n th e recor d, an attorney f or Dinsmore adm its receiving the invoice but cl aims payment was never authorized. The record conta ins no d efinitive p roo f o f w hether Schwartz was in

fact rei mburse d. For summary j udgment purpose s, we will assume Dinsmore paid the invoi ce. hold ing, including the judgment based upon res judicata, the dismissal of P&G’s Lanham Ac t claims, and the dismissal of P&G’s civ il RIC O claims

. See Procter & Gamble Co. v. AmwayCorp. , 242 F.3d 539, 567 (5th Cir. 2001). It appears fromthe record that the remain ing claims in this case were
sc heduled for trial in January of 2003, but it is unclear fro m the parties’ briefs wh ether t here ha s been an y c onclusion

to the proc eeding s.
At some point after P&G fi le d its lawsu it in Texas, Schwart z asked Dinsmore for

a copy of the Texas compla

int. After Dinsmore refused to supply Sch w artz with any documents filed in the Texas litigation, Schwart z obtained a copy of the complaint on his own and billed Dinsmore for his copying expenses. 6 S chwartz eventua lly p osted the

entirety of some of the documents from the earlier ca ses—including the Setzer complain

t—that Din smore had provided him, as well as the Texas complaint he had obtained on his own.

Inthe present action, Amway identified ninety-nine statemen ts published on Schwartz’s website that it claims are falseho ods. Of those, eighteen were attributable to the Appel lees. These eighteen statements include sixteen paragraphs inthe Texas complaint, involving allegations that Amway is an illegal pyr

amid sche m e 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 conc edes that both complaints are public documents filed in a federa l district c ourt and a

vailable 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 judgme

nt de novo, using the same s tandar d under Rule 56(c) used by the districtcourt, Williams v. Mehra , 186 F.3d 685, 689 (6th Cir. 1999) (en banc), and we consider the re cord as it stood before the district court at the time of its ruling. Ni ecko v . Emro Marketing

Co. , 973 F.2d 1296, 1 30 3 (6th Cir. 1992). Summa ry jud gment is

proper i f “the pl eading s, deposit ions,
answers to interrogatories , andadmissions on file, together with the aff idavits, if any , show tha

t there is no genuine issue
as to any materia l fact an d that the moving pa

rty is entitled t

o a judgmen t as a matt er of law.” F ED

. R. C IV

. P. 56(c ). We viewthe e viden ce, all facts, and any inferences that may

be drawn from the f

act s in the light most favorable to the nonmovi ng pa rty. Matsushita Elec. In dus. Co. v. Zenith Radio Corp. , 47 5 U.S. 574, 587 (1986). To withstand summary judgment, the non-movant must pres en t sufficient evidence to create a genuine issue of mat erial fact. Klepper

v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). A mere sci nt illa of evidence is insufficient; “there must be evidence
onwhich the

jury could re asonably

find for the [nonmovant].” Anderson v. Liberty Lob by, Inc. , 477 U.S. 242, 252 (1986). E

ntry of su mm ar y judgmen

t is appro

priate

“ againsta party who f

ails to make a showing sufficient t o 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 C

orp. v. Cat

rett , 477 U.S. 317, 322 (1986). Amway’s C

laim Amway asserts that Schwartz and Appel lees conspire d to disruptthe business structure and relationships of Amway by disseminating untrue allegations. Sim ilar to P&G’s complaint against the Plaintiff, Am way’s complaint here claims that the A

ppellee s’ conduc

t cost Amway businessand 10 Amway Corp. v. Procter & Gamble Co ., et al. No. 01-2561

was undertaken with a malicious and manifest disregar d for the rights of Amway . The district court, clearly frustrate d with both parties, narro we d its focu s in this ca se down to what it believe d to be th e ke y issue before it—Amway’s effort to recover damages for a speech tort committed by Appellee s. The court’s opinion correctly focuses on the fact that Amway ’s only

allega tion involv es the Ap

pellees ’ action of givingthe documents to Schwartz with the intent that the document s would be posted on the internet. In finding for the Appel lees, the court made several observations: (1) the eviden ce do es not support a finding of a conspiracy ; (2) not every document allegedly

provided by the De fend ant s is at issue in the case; (3) Amway attributes only eig

hteen allege dly defamatory

statements to the Defend

ants; (4) all the posted document s were p

ublically avai lable; (5) none of the allege dly defamatory

statements is new; (6) Amway is a public figure ; and (7)the suit is r ea lly a bout busine ss competitionand 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 notso irregular as to require an infe rence of a

conspir acy under Michigan law, and Amway f ailed to provide any actual evidence of

anagree ment betw een the p arties in dicating their desire to interf

ere with Amway ’s busine ss r el ations. Ad di ti on al ly, the court found that the spee ch alleged to be defamatory

was privileged and subject to First Am endme nt protect ions, and that A

mway —as a pub li c figure

—failed to prove not only that

the spee ch was false, but that the Defend ants acted with malice or with the knowledge that their state me nts were false or made with reckless disre gard of whether they were false. Finally , the district court granted the Defend ants’ motion for summary judgme nt by apply

ing Michigan’s fai r re porting privileg e, which

protect s individua ls who fairly a

nd accura tely report information that substantia lly r eprese nts matters contained in cour t recor ds.No. 01-2561 Amway Corp. v. Procter & Gamble Co ., et al. 11

7 First Am end men t prote ctions a pply in a tortious int erf erenc e act ion when the action com plained o f was defamatory speech. It i s therefore consistent

to apply

the f air r eportin g privi lege t o a cl aim fo r torious int erfer ence that

is bas ed upo n defa mato ry spee ch. See Me yer v. H ubb ell
, 324 N.W.2d 139, 144 ( Mich. App. 1982) (n oti ng that in acla im f or defamation, the absolute judici al pro ceed ing priv ilege wo uld also app ly to a rela ted cla im of to rtious inte rferenc e). Michigan Fair Reporting Privilege Under the Michigan statute: Damages shall not be awarded in a libel action for the pu blicat ion or broadcast of a fair and true r eport of matters of public

record, a publ ic and offic ial pr oceedi ng, or of a governmental notice, announce ment, wr itt en 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 he adnote of the report. This privilege shall not apply to alibel whic

h is contained in a m at te r a dd ed by a person concerned in the publicationor

contained in the report of any thing said or done at th e t ime and place of the public and official proceeding

or governmental notice, annou nce ment, writtenor recorded report or rec ord gener ally availab le to the public, or act or action of a public b od y, which was nota part

of the public and official proceeding or governmentalnotice, a

nnounce ment, written or

recorded rep o rt or record genera

lly available to the public, or a ct
or ac ti on of

a p ub li c b od y.
MC LA § 600.2911(3). 7 Amway does not dispute that, under this law, a

verbatim reproduction of a public court document would be privileged. Rather, Amwa y ar gues that P&G and Dinsmore—who created the complaint inthe Texas litigation 12 Amway Corp. v. Procter & Gamble Co ., et al. No. 01-2561

8 For purp oses o f this argum ent, we a ssume the D efend ants “pub lished” the do cum ents on Schw artz’s we bsite. and participated

in t he publication of the documents on Schwartz’s website—are not protected by the privilege. 8

Insupport of its posit

ion, Amwa

y c ites Park v. Detroit Free PressCo. , 40 N.W. 731 (Mich. 1888), where the Michigan Supreme Court said, “[i]f pleadings and other documents can be pub lished to the world by a ny one who g ets acc ess to them, no more effectual way of doing malicious

mischief with impunity could be devised than filing papers containi ng fals e and scurrilous charges, and g etting those print ed as n ews.” Id

. at 734. The Park

decision is consistent with the reporting privi lege contai n ed in the Se cond Rest atement o f Torts. Section 61 1 of the Se cond Rest atement p rovides:

The publicat

ion of def amatory matt er con cerning another ina report of

an official action or proceeding or of a meetingopen 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 oc cur re nce reported.

R ESTATEMENT (S ECOND ) OF T ORTS § 611. This priv il ege, however, is no t abso lute. Simi lar to the co urt’s langu a ge in Park , Comment c

provides , in rele

vant par t:

A person c annot c on fer this privilege upon himself by making the original defamatory publication himself and thenreportingto other pe ople wha t he had st ated. Th is is true whether

the original public ati on was privileged or not. Nor may he

confer the privilege upon a third person,
even a member

of the communications media, by ma king the or iginal s tatement

under a c ollusive a

rrang ement wit

h th at person for the purpose of conferring the privi leg e upon him.No. 01-2561 Amway Corp. v. Procter & Gamble Co ., et al. 13

R ESTATEMEN T (S ECOND ) OF T ORTS § 611 cmt. c. If the publicationinvolves s ome form o f judi cial p roceed ing, there must be offic ial action in

the proceeding before one c an invoke the privilege:

A report of a judicial proceeding implies tha t some official action has been taken by the officer or body whoseproceeding s are thus reported. The publication, therefore, of the contents of prelimina ry pl eadings such
as a complaint or petition, before any judicial action has been taken is not within the ru le stat ed in this Section. Animportantreason for this position has been to prevent implementationof a scheme to file a c omplaint for the purpose of estab lishing a

privileg e to public ize its content and then dropping the action. (See Comme nt c ). It is not necessary , ho wever, that a final disposition be made of t he matter

in question; it is enou

gh that s ome judic ial a ction has been taken so that, in the normal progre ss o f the proceeding, a final dec ision will be rendered. So too, the f

act that t he pr oceedings are ex parte rather than inter parte s is immaterial if the matter has come officially

before the tribunal and action has been tak en in ref erence to it.

R ESTATEMENT (S ECOND ) OF T ORTS § 611 cmt. e (emphas is in original). A lthough P &G did no t withdra w its compl aint in the Texas litig ation af

ter it wa s publishe d on the we bsite (indeed, P&G a

ppe ars to ha

ve pursue d that action well beyond the public ation), A

mway argue s that Comme

nt e still expresses a concern

for the exact situation found in this case. Amway also re li es upon a case from I llinois which applied the sam e type of f

air reporting privilege and invoke d the Second Restatement. In Kurczaba v. P olloc k , 742 N.E.2d 425, 442-43 (Ill. App. Ct. 2000), the court held that the fa i r reportingprivilege does not apply to a defendant who sought to confer the privilege upon himself by filing a complaint

and then “re porting ” the com

plaint to ot

hers. 14 Amway Corp. v. Procter & Gamble Co ., et al. No. 01-2561

Amway also turns to the grammatical structure of the statute. Specifically, Amwa y arg ues tha t th e parallel use of two “contained in” claus es separated by “or,” demonstrates two distinct categories that are in the disjunctive

. Furthermore, Amway cla ims the clause “which was not part

. . .” modifies the last antecedent and not the former. See Sun ValleyFoods Co. v

. War d , 596 N.W.2d 119, 123 (Mich. 1999) (“It is a ge

neral rule o f grammar and of statutory constructiont hat a modifying word or clause is confined solely to the last

antece dent, unle ss a contrary intention appears.”). Ac co rd in gl y, under Amway ’s interpretation, the Defen dan ts cannot find protection under the fair reporting privilege. We are not persuaded.

The exce ption to the

privileg e reads :
This pr iv il eg e s ha ll no t a pp ly t o a libel w hich is contained ina matter added by

a person concerned in the publicationor contained in the report of any thing said or do ne at the time

and plac e of the p

ublic and officia l proce edi ng or gove

rnmenta l notice, announc ement, writtenor recorded

report or record gener ally availab le to the public, or

act or a ction of a publi c body, which was nota part of the public and official pro ceed ing or governmentalnotice, a

nnounce ment, written or

recorded report or record genera

lly available t

o the public, or act
or ac ti on of

a p ub li c b od y.
MC LA § 600.2911(3). The statute excepts from the privi lege libels that are not a part of the public and

official proceeding
or gover nmental notice, wr

itten rec ord or re cord g eneral ly availab le to the public. These libels are of two kinds: (1) a libel which is “contained in a ma tter added by a

person concerned

in the publ ication, ” or (2)a libel wh ich is “contained

in the report of any

thing said or do ne atthe time and place of the public and official pr oc eeding or governmentalnotice, announcemen t, written or recorded report or record genera

lly available to the p

u blic, or act orNo. 01-2561 Amway Corp. v. Procter & Gamble Co ., et al. 15

9 The Michigan legi slature a men ded the fair rep orting sta tute following the state supreme c ourt’s d ec ision in Rouch , address ing what the leg isl atur e fe lt

was t he su preme court’ s t oo n arro w def ini ti on of “off icia l proceeding. ” See Northland Wheels Roll er Skati ng Ctr. v. De troit Free P ress , 539 N.W.2d 774, 778 n.4 ( Mich. App. Ct. 1995). T he Michigan Supreme Court ’s decis ion n ot to use the Second Restatement remains applicabl e to our i nterpre tati on of th e amended stat ute. actionof a publi c body .” Contra ry to Amwa y’s belief, “ or” inthis statutory section is used as a coordinating conjunction to connect the two kinds of libel, see H ARBRACE C OLLE G E H ANDBOOK16 (John C. Hodges, et al. eds., re v. 12th ed. 1994) (coordinating conjunctions, including “or,” join two clauses of e qual gr ammatical rank); and both kinds of libel
are plainly modified by

the clause “which was not a pa rt of the public an d official proceeding or g overnmental notice,
announc ement, written or recorded report or

record gener ally availab le to the public, or act or action of a public body ,” and both are plainly include d in the exception. Ass uming that any al legations in the Texas complaint or the Setzer complaint—or

both—were libelous, the libel was included in the a ctual complaint and the Appellees did not add any statemen ts, let alone

false sta tements, when they

supposed ly published the complaint

on th e i nt er ne t. Ac co rd in gl y, we find that Michiga n’s fair reportin g privil e ge applies to the publicationof the entire complaints on Schw ar tz’s website, and no exception to the pri v ilege a pplies to the Appelle es’ conduct complained of here.

Becau se we find that the plain language of t h e statute clearly directs our decision, we find no reason to consider the Second R estatement. 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 Michi gan’s fair reporting statute). 9 Genera lly speak ing, a party’s publicat ion of any

actual c ourt fili ng or statement made in a judic ial proc eeding is privile ged be cause the public has a legit imate inte rest in accessing and viewing that ty pe of 16 Amway Corp. v. Procter & Gamble Co ., et al. No. 01-2561

information. Amway bring s suit for injuries claimed under a state-created

tort, but the state ha s seen fi tto codify a g eneral privi lege and not to except from it the kind of conduct alleged inthis ca se. The state has not, contrary to Amway’s argume nts, limited tha

t p r ivilege in a way

that exposes the De fe nd an ts to li ab il it y.
Fi na ll y, we consider A mway’s re liance upon Park misplaced. Court filings were not public records in Michigan when Park was decided more than one hundred ye ars ago. SeeIn re Midland P ub. Co. , 362 N.W.2d 580, 586 (Mich. 1985) (noting

that the d

ecision in Park was premised on the reasoningthat plea

dings in private a

ctions we re not pub lic records).

Ac co rd in gl y, we hold that the cond uct of P&G and Dinsmore was protected by the Michi gan fair reporting privilege, and on that basis, we affirm the judgment of the districtcourt dismissing this action. Having thus decided, we decline to address the commercial speech issues arg ued by the parties. Amway and P&G h ave each now prevailed aga inst the other at the ap pellate level in the feder

al court s. Although no decisionfrom this Court—or any other, we predict—will end the hatred these two corporate gia nts harbor for ea ch other,
we hope that they will consider the impact of their continuing legal battle on the scarce resources of the c ourts, and decide to concentrate their creative talents on the more t ra ditional methods of gain

ing comp etit i ve advantage and decla re a ceasefire in the judicial arena.

CONCLUSION

For the foregoing reasons, we AFFIRM the judg

ment of the district c ourt.No. 01-2561 Amway Corp. v. Procter & Gamble Co ., et al. 17

1 Quoted at Op. 14, above.

_____________________ CONCURRENCE

_____________________ WILL IAM W SCHWARZER, Senior Distric t J udge, Conc ur ring. The application of Michigan’s Fair Repor ting Statute, Michigan Compiled Laws§ 600.2911(3) (2003), 1 to th e f acts of this case presents a question of first impression. Neither the Michigan Supreme Court nor any other c ourt has issued a reported decision

on the issue before us: whether the privi lege 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).

Inan early

case, Park v. Detroit Free Press Co. , 40 N .W. 731 (Mich . 1888), the Supreme Court add

ressed t he validi ty of a statut e which limited the liability of newspapers f or publ ic ationof defa

matory matter in the abse nce of ba d faith and upona prompt retraction. In dictum, the court re ferre d to testimony concerning thenew spaper r eporters’ diffic

ulty in getting access to the judge s’ files and added:

One of the reasons why

parties are privileged from suit for accusa tio ns made in the pleadings is that the plead ings are add

ressed t o courts w

here the facts can be fairly tried, and to no other readers. I f pleadings and other documents can b e published to the world by any
one who gets access to them, no more effe ctual wa y of doing malicious mischief with impun ity could be devised th anfiling p apers c ontaining false a nd scurr ilous c harges
, and getting those printed as news. The public have no rights t o any

informat ion on priv ate suits t

ill they come up for public hearing or action in open court; and w he n 18 Amway Corp. v. Procter & Gamble Co ., et al. No. 01-2561

2 It read , in releva nt part: “No damages shal l be awarded i n any l ibel act ion b roug ht again st a rep orter, e ditor, p ublishe r, or p rop rietor o f a newspaper for publicati on in it of a fair and tr

ue report of any public and offi cial proceeding .

. . .” Rouch , 398 N.W.2d at 248. any publication is made involving such matters , the y posses no privilege . . . .

40 N.W. at 734.

The Park decision , an echo from a d istant past, anteda tes the adoption of § 600.2911, which clearly recognized the public’s “rights to . . . informa tion on pri

vate suits ” when they
are file d. Se e 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 rec ords.”) . Thus, Park sheds no light on the scope of the statutory privilege.

As originally e

nacted in 1931, § 600.2911(c) protected only reporte rs, editors, publishers, or proprietors of newspap ers. 2 Rouch v. Enquirer &News of Battle Creek
, 398 N.W.2d245, 248 (Mich. 1987). Following that decision, in 1988 the statute was amended t o s ignificantly e nlarge its scope. See Northland

Whe els Roller Skating Center, Inc. v. Detroit Free Press, Inc. , 539 N.W.2d774, 777 (Mich. App. 1995). Thus,
as amended, it no longer

was limi ted to “public and official proce e ding [s]” but applied as well to reports of “matters of public record,” and

its protec tion extend

ed to any one ag ainst whomdamage s might be awarde d in a li

bel action for a publicationor broad

cast, not simply memb e rs of the newspaper

trade. While pre-amendm e nt the stat ute would have afforded no protection to d efen dants in this case, the amendment

plainly protects them for publis hing a fair and true report of a matter of public recor d. Amway contends nevertheless tha

t d efen dants fa

ll within the statute ’ s exception for libel “which is contained in aNo. 01-2561 Amway Corp. v. Procter & Gamble Co ., et al. 19

3 Th e exc eptio n read s: Th is priv il ege s hall

not a ppl y t o a libel whi ch is contained in a matter added by a p erson

concer ned i n th e publ ication or contai ned in the report of anything said or done at the time and pla ce of the publ ic and of

fici al proceedi ng or govern mental notice
, announcement, writt en or recorded repo rt or record gene rally avail able to t he publi c or act or

acti on of a pu blic bod y, which was not part of the public and off icial proceeding

or government al not ice, announcement , wri tten o r recorded report or re cord ge neral ly avai labl e to t he publ ic or

actor act ion of a p ublic b ody. matter ad de d b y a pe rson concerned in the publication.” 3 It argues that def

endantsauthored the defamatory statemen ts in the c omplaints and, having arranged f or their dissemination
onthe internet, were persons concer ned in the ir

publication. It argues further that the qualify ing clause, limiting the exception to matt er “which was not part of the public and off icial procee ding” a

pplies onl

y to the second part o f th e exc eption dealing with reports of official procee dings. The argument is unavailing. As the district cou rt fou nd, it was undisputed

that all the documents defendants provided and that were published

were pu blicly availab le court

document s. Dist. Ct. Op., Jt. App. 652. Thesedocument s were v erbatim copies of what was in the court files, a nd thus t hey wer e “accur ate reports of matters of public record.” Id. at 677, 680. And al l of the allegedly

defamatory

statements came from these complaints in the court files. Id. at 652. Amway contends that the publicat ion of the

complain

ts, thou gh accu

rate, di d not qualify as a fa ir and true report b ecause it failed to present Amway ’s side of the matter s alleged in the com

plaints. Moreover , Amw a y charges that defenda nts abused the privilege because they acted to further their anti-Amway

mo tiv es. The s tatute ca nnot be re ad to require the publisher to give eq ual time to

opponent s of what is in the public record. To make the report ing pr ivil ege conditional on a bala

nced pre sentation , as Amwa y a rgues, 20 Amway Corp. v. Procter & Gamble Co ., et al. No. 01-2561

4 Quoted at 13, above.

5 For that reaso n, case s dec ided unde r the R estatem ent’s rul e are not releva nt. See , e.g. , Kurczaba v. Pollock , 742 N.E .2d 2 45, 442-43 ( Ill. App. Ct. 2000 ). would eviscer ate it. Wha

t the statu te requi res i s tha t matters of public record be reported fairly and tr ut hf ul ly, i.e., that the reportis not “so edited and deleted as to misrepresent the proceeding an d thus be misleading.” See Doe v. Doe , 941 F.2d 280, 2 89 (5t h Cir . 1991 ) (quo ting R ES TATEMENT (S ECOND ) OF T ORTS § 611 cmt. f). So long as tho se conditions are met, motive isirrelevant. Stablein v. Schuster
, 455 N.W.2d 315, 317 (Mi ch. Ap p. 1990) (stating that “the statute makes it clear

that defendant’s motivation is irrelevant if a fair and true report is made of the proc eeding.”). Amway further contends that

defendants are excluded from the p r ivilege under the R ESTA TEMENT (S ECOND ) OF T ORTS

. It cites § 611 comment c, which states that a person cannot confer the privilege upon himself by making the origi nal defamatory

publ icati on hi mself

and th en repo rting to o ther 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 plea

dings such
as a complaint or petition, before any judicial action has been taken is not within the rule stated i n this S ection.” 4 The argument is inapposite. D efen dants claim the fair reporting privile ge un der § 600 .2911(3) , not unde r the Rest

atement. Moreover, because the Michiga n statute and the Restatement
are not coextensive, citation to the Restatement “is not helpful in[the court’s] eff

ort to interpret the statute.” Rouch , 398 N.W.2dat 250 (stating that the Restatement’s “official action” privileg e is broa der than the statut

e’s privilege t

o report “public and official proceeding s.”). 5No. 01-2561 Amway Corp. v. Procter & Gamble Co ., et al. 21

6 See Dallas Indep. Sch. Di st. v. Fi nlan , 27 S. W.3d 220, 23 9 (Tex. App. 200 0) (statin g that “[t]he harm resulting to a defa med party fro m delivery of pl eadin gs i n a l awsui t t o t he news m edia c ould dem onstra tively be no greater than i f the news media found the pleadings on their own.”). Amway’s contention that the fair rep or ting p rivil ege protect s only

third par

ties is thus

at odds with the p lain l an guage of the statute and contrary to common sense. Suppose the Wall Street Journal ’s reporter copies a complaint
onfile and then reports on it in a story. The

privileg e would apply to him. But

suppose that inste ad he wr

ites his story on the basis of the com

plain t gi ven to him by the plaintiff after it has been filed. The rep or ter would still be entitled to the privilege. It ma

kes no sen se to extend it t o him but tosubject the plaintiff to liability for giving him the compl aint. 6 Or suppose the plaintiff, or perhaps her lawy er, is interviewed on
a news pro gram a

nd respon ds with a fair and true summary

of the complain

t’s allegations. Sur

ely it makes no sense to interpret the statute so as to extend t he pri vilege to the interviewer but not to the interviewee. For these reasons, I

join in the aff irmance of the jud gment.