Wyo. Corporate Servs. v. CNBC, LLC

NANCY D. FREUDENTHAL

Motion granted.

Graham H. Norris, Jr., Provo, UT, for Plaintiff. Katherine M. Bolger, Levine, Sullivan, Koch & Schulz LLP, New York, NY, Khale J. Lenhart, Robert Carl Jarosh, Hirst Applegate, LLP, Cheyenne, WY, Mara J. Gassmann, Levine, Sullivan, Koch & Schulz, LLP, Washington, DC, Thomas B. Kelley, Levine, Sullivan, Koch & Schulz LLP, Denver, CO, for Defendants.

ORDER GRANTING DEFENDANTS' CONVERTED MOTION FOR SUMMARY JUDGMENT

NANCY D. FREUDENTHAL, Chief Judge.

This matter is before the Court on Defendants' converted Motion for Summary Judgment. Having considered the converted motion, the response, the reply, and otherwise being fully informed in the premises, the Court concludes the converted motion is GRANTED.

It appears the basis for WCS's suit is that between 2011, when the original article was published, and the 2014 re-publication, some of the information, being three years old, is no longer true.

In Wyoming,

[a] defamatory communication is one which tends to hold the plaintiff up to hatred, contempt, ridicule or scorn or which causes him [or her] to be shunned or avoided; one that tends to injure his reputation as to diminish the esteem, respect, goodwill or confidence in which he [or she] is held.
Hoblyn v. Johnson, 55 P.3d 1219, 1233 (Wyo.2002) (quoting Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 224 (Wyo.1994)). “Proof that the statement is substantially true is all that is generally required to defend against a charge of defamation.” Davis v. Big Horn Basin Newspapers, Inc., 884 P.2d 979, 984 (Wyo.1994) (citing Dworkin v. L.F.P., Inc., 839 P.2d 903, 912 (Wyo.1992)). “ ‘[I]t is not necessary to prove the literal truth of the accusation in every detail, and that it is sufficient to show that the imputation is substantially true, or, as it is often put, to justify the ‘gist,’ the ‘sting,’ or the ‘substantial truth’ of the defamation.' ” Tschirgi v. Lander Wyoming State Journal, 706 P.2d 1116, 1120 (Wyo.1985) (quoting Prosser and Keeton, The Law of Torts (5th ed. 1984), p. 842) (emphasis added).

Put differently, even if a statement is false, the falsity of that statement may be so immaterial when examining the context in which it is made that it cannot support a defamation claim. See Chapin v. Knight–Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir.1993) (“The falsity of a statement and the defamatory ‘sting’ of the publication must coincide—that is, where the alleged defamatory ‘sting’ arises from substantially true facts, the plaintiff may not rely on minor or irrelevant inaccuracies to state a claim for libel.”). “It is established that a court should not scrutinize simply the literal references of the language in question, but also should weigh the words ‘together with their context.’ ” Pierce v. Capital Cities Communications, Inc., 576 F.2d 495, 502 (3d Cir.1978) (quoting Restatement, Second, Torts § 563, Cmt. d.). This principle is clearly at work here.

WCS recognizes that minor factual inaccuracies cannot support a defamation claim. See Doc. No. 25, p. 5. According to Plaintiff, however, “at some point those cumulative errors snowball into falsehood.” Id. Plaintiff's argument carries little weight. The alleged inaccuracies in the 2014 Article do not hold WCS up to shame or ridicule, and, therefore, Defendants cannot be liable for defamation.

“The best procedural protection for freedom of speech ... is found in the remedy of summary judgment in which the courts have utilized freely in such cases. The chilling effect of litigation and the associated expense and inconvenience frequently have led courts to conclude that summary judgment is the most appropriate remedy in an instance such as this in order to minimize that chilling effect as much as possible.” Dworkin, 839 P.2d at 914 (citation and quotations omitted); see also Cinker, Inc. v. Northern Gas Co., Inc., 578 F.Supp. 112, 114–15 (D.Wyo.1983) (Judge Clarence Brimmer) (“Courts have been keenly aware of the advantages of summary judgment in a libel action because these actions potentially have a chilling effect on the free press. In practice, summary judgment has been frequently granted.”).

I. The Statements Are Not Defamatory

Even if false, the vast majority of the twenty-two allegedly false statements are not defamatory. The use of the word “unearths” in the title of the 2014 Article (Statement A), misstating that WCS has 2,000 companies registered at its address (Statement B), that there are a lot of mailboxes in its office (Statement C), that it uses a “bulky copy machine” (Statement D), that it has an employee who answers calls and sorts mail (Statement E), or that the Article calls WCS a “business-incorporation specialist” (Statement G) do not hold WCS up to ridicule or shame, and are, therefore, not defamatory.

WCS's own President, Gerald Pitts, refers to WCS as “offer[ing] business incorporation services.” Doc. No. 25–1, p. 1. According to WCS being called a “business incorporation specialist,” when it only offers “business incorporation services,” supports a $10,000,000 defamation claim.

With respect WCS's headquarters being located at “2710 Thomes Avenue” (Statement F), this is false. WCS no longer conducts business at 2710 Thomes Ave. in Cheyenne, Wyoming. Rather, WCS's headquarters is now located about 8 blocks south at 1712 Pioneer Ave. But this simple discrepancy is the result of the three-year difference between when the 2011 Article ran and when CNBC re-published it in 2014. Like many businesses, WCS has moved. This type of factual inaccuracy, however, hardly supports a defamation claim. No reasonable person would conclude that misstating a company's address holds that company up to shame or ridicule. At worst, such an inaccuracy may lead to the current resident of 2710 Thomes Avenue receiving some of WCS's mail.

With respect to whether Mr. Pitts is 54 years old (Statement R), Mr. Pitts is not. He is 57 years old. This is a natural occurrence given that the 2011 Article, re-published by CNBC, is three years old. Again, however, this cannot support a defamation claim.

Moreover, WCS has no standing to sue for defamation of a third party.

With respect to “Brookside Management” (Statement P) and “Knotty Management” (Statement Q) being listed for sale on WCS's website, neither is currently listed for sale However, no reasonable person would consider such statements to be defamatory. Other than the incorrect statement that they are listed for sale on WCS's website, there is no other mention of them in the 2014 Article. In fact, WCS's website lists a number of other companies for sale in Wyoming, ranging from $9,995 to $645. These companies go by many different names. While the companies listed for sale in the 2014 Article are no longer for sale, the point is the same: WCS sells companies on its website. The fact the names are different today than they were three years ago hardly makes such inaccuracies defamatory.

WCS argues it only has 238 available in 25 states, and not “more than 700 shelf companies for sale in 37 states” (Statement O). Even assuming this is true such a factual inaccuracy is not defamatory because it does not hold WCS up to ridicule or shame. The “gist” of the statement is the same: WCS lists hundreds of companies for sale in a variety of states on its website.

With respect to the statement that WCS “is part of a little-noticed industry in the U.S.: the mass production of paper businesses” (Statement L), it also cannot support WCS's defamation claim because it does not visit ridicule or shame upon WCS. Moreover, the statement is substantially true. On WCS's own website it lists hundreds of “Aged (Shelf) Corporations” available for sale in more than half the states. http:// wyomingcompany. com/ aged- corporation/. In the “Prices” section of its website under the “Aged (Shelf) Corporations” heading, WCS states it offers “a limited number of previously formed, unused corporations.” http:// wyomingcompany. com/ prices- top/. Whether WCS is actually a part of the “mass production” of paper businesses, is irrelevant because there is no clear definition of what qualifies as “mass production.” What is known, however, is that WCS does offer paper companies (i.e., “Aged (Shelf) Corporations”) for sale on its website. Consequently, the “gist” of this statement is substantially true, and, therefore, not defamatory.

The Court counted roughly 384 companies for sale in 27 states. Granted, a small number of these listed companies listed for sale have “[n]ot a shelf company” in parentheses next to the company's name. However, all 384 companies are found in the “Aged Shelf Companies” section of WCS's website.

With respect to the statements that WCS sells shelf corporations “with years of regulatory filings” (Statement H) or that come with “established bank accounts, credit histories and tax returns filed with the Internal Revenue Service” (Statement M), even if false, these statement do not hold WCS up to shame or ridicule. In any event, the “gist” of this statement is substantially true. WCS offers Aged (Shelf) Corporations that “come with Certificates Of Good Standing from the state, Certified Articles of Incorporation from the state, ... 20 pre-printed stock certificates, corporate seal, suggested meetings minutes and one year of Registered Agent Services.” http:// wyomingcompany. com/ aged- corporation/. Moreover, in its response, WCS admits that “[t]hese ‘shelf’ companies are maintained only by filing the required annual report with the Secretary of State.” Doc. No. 25, p. 7.

WCS takes issue with the quote by Daniel E. Karson stating “the purpose is to conceal ownership” (Statement N). This also is not defamatory because it does not cause WCS shame or ridicule. Moreover, this statement is Mr. Karson's opinion. In other words, it cannot be proven true or false, and, therefore, is not defamatory. The context within which the statement was made dealt with Mr. Karson's view of the industry as a whole, and not just WCS. Doc. No. 19–13 (2014 Article), p. 6 (“They just slot in your names, and you walk away with the company. The purpose is to conceal ownership.”). The statement does not imply “the allegation of undisclosed defamatory facts as the basis for [Mr. Karson's] opinion.” Rest. (Second) of Torts, § 566 (1977); see also Spence v. Flynt, 816 P.2d 771, 775 (Wyo.1991) (following Rest. (Second) of Torts, § 566 (1977)). Rather, the statement is Mr. Karson's opinion about the purpose of the incorporation industry as a whole based on a person's relative ease in being able to buy a shelf corporation. Currently, there is nothing illegal or shameful about hiding a person's ownership in a company.

WCS complains about the 2014 Article attributing the following statement to WCS's website: “A corporation is a legal person created by state statute that can be used as a fall guy, a servant a good friend or a decoy. A person you can control ... yet cannot be held accountable for its actions. Imagine the possibilities!” (Statement I). WCS complains this statement is not on its website. However, there is nothing defamatory about it There is no assertion that WCS is in the business of helping others engage in illegal activities. The statement merely conveys what a corporation can provide given current incorporation laws—not what WCS is capable of.

On its website, WCS does highlight that “A Wyoming corporation or LLC offers its officers and directors the highest degree of protection from lawsuits filed by disgruntled creditors or overzealous plaintiff attorneys. Doing business as a Wyoming Corporation or LLC can give you asset protection and business privacy.” http:// wyomingcompany. com/.

With respect to the statements concerning Capital Investments Group, Inc. (CIG) (Statements J and U), WCS's complaint is that CIG is not registered at 2710 Thomes Avenue. Again, WCS is correct—CIG is no longer registered there. However, this is because the 2014 Article is a re-print of the 2011 Article. In any event, a factual inaccuracy about where a third party company is registered is not defamatory because it does not hold WCS up to shame or ridicule.

A review of Wyoming's Secretary of State's records reveals that at the time of the 2011 Article, CIG was registered at 2710 Thomes Ave. https:// wyobiz. wy. gov/ Business/ Filing Details. aspx? eFNum=25122918 717706304 1104200 11007517 1204123 153219 093.

The statement concerning Elite Funding Group's (EFG's) owner being indicted in April 2013 (Statement K) and EFG being registered at 2710 Thomes Ave. is also not defamatory. WCS complaint about this statement is that “the alleged owner ... was indicted over two years ago, not in April [2013]” and EFG is not registered at 2710 Thomes Ave. Such factual inaccuracies, however, do not cause WCS any shame or ridicule. Moreover, WCS does not even have standing to complain about this statement because, as pointed out by WCS, it is not located at 2710 Thomes Ave. and the statement concerns a third-party being indicted, not WCS.

With respect to the statement regarding Mr. Pitts being “listed as director, president or principal of at least 41 companies registered at 2710 Thomes Avenue” (Statement S) and the statement regarding Pavlo Lazarenko being jailed for eight years in California (Statement T), WCS lacks standing to sue based on them. See New York Times Co. v. Sullivan, 376 U.S. 254, 287, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (“We also think the evidence was constitutionally defective in another respect: it was incapable of supporting the jury's finding that the allegedly libelous statements were made ‘of and concerning’ respondent.”). To support a defamation claim, the alleged defamatory statement must “hold the plaintiff up to hatred, contempt, ridicule or scorn[.]” Hoblyn, 55 P.3d at 1233 (citation omitted) (emphasis added). Statements S and T involve individuals other than WCS. Consequently, WCS cannot base a defamation claim on them. Finally, WCS's complaint about the statement that Mr. Pitts is the President, Secretary, Chairman and director of CIG (Statement V), cannot support a defamation claim because it does not concern WCS.

There is nothing defamatory about saying a person is the registered “director, president or principal” of a number of companies.

In any event, with respect to Mr. Lazarenko, WCS's main complaint is that Mr. Lazarenko was released in November of 2012 and is not “currently serving an eight-year jail term.” WCS does not appear to dispute that Mr. Lazarenko did serve a jail term. The alleged defamation appears to result from the 2014 Article being a re-print of the 2011 Article, which, at the time, was factually correct concerning Mr. Lazarenko's jail term. Even though factually incorrect today, such a factual inaccuracy does not qualify as defamatory.

II. Defamation by Implication

Based on WCS's response to Defendants' motion, it appears the basis for WCS's suit is that the 2014 Article carries the following implications:

1. “[That] Plaintiff is in the business of aiding and abetting illegal activities of the sort specified in the article[.]”

2. “[T]hat [Plaintiff] [ ] is in the business of offering illegal business solutions to clients.”

3. “[T]hat Plaintiff's clients generally were criminals or engaged in criminal activity.”
Doc. No. 2, pp. 7–8, ¶¶ 44, 54.

WCS focuses its attention on how the 2014 Article implies that WCS is in the business of aiding others in committing criminal acts. Doc. No. 25, pp. 3–4 (“The true defamatory sting of the article is to allege that WCS sells shell and shelf companies for the purpose of permitting others to engage in criminal enterprises.... The article casts WCS in a negative light by associating it with only other businesses or individuals who have been charged or found guilty of crimes.”); p. 4 (“The article casts WCS in a negative light by associating it with only other businesses or individuals who have been charged or found guilty of crimes.”); see also id. at 9 (“The 2014 Article is defamatory because it may reasonably be interpreted to convey statements or implications which are false ... [and] uses special terms to convey a specific impression, not of an industry, but of WCS.”).

“A defamation by implication stems not from what is literally stated, but from what is implied.” White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C.Cir.1990). “ ‘The theory of defamation by implication recognizes that the reputational injury caused by a communication may result not from what is said but from what is implied.’ ” Heyward v. Credit Union Times, 913 F.Supp.2d 1165, 1189 (D.N.M.2012) (quoting New Mexico case law). “A defamatory implication must be present in the plain and natural meaning of the words used.” Chapin, 993 F.2d at 1092 (citing Virginia law) (emphasis added). “[B]ecause the constitution provides a sanctuary from truth, a libel-by-implication plaintiff must make an especially rigorous showing where the expressed facts are literally true.” Id. “The language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference.” Id. (citing White, 909 F.2d at 520) (emphasis added). “[A]ll of the court of appeals that have considered cases involving defamation by implication have imposed a similar actual intent requirement.” Dodds v. American Broadcasting Co., 145 F.3d 1053, 1064 (9th Cir.1998) (citing Chapin and White ).

“Although [Wyoming's] common law of libel governs this diversity case, the First Amendment's press and speech clauses greatly restrict the common law where the defendant is a member of the press, the plaintiff is a public figure, or the subject matter of the supposed libel touches on a matter of public concern.” Chapin, 993 F.2d at 1091–92. There can be no serious dispute that both Defendants are member of the press. Moreover, because there is a dearth of case law regarding defamation by implication in Wyoming, it is appropriate for this Court to look beyond Wyoming's boundaries for guidance.

There is no allegation in the Complaint that Defendants intended or endorsed the inference WCS attaches to the Article. Moreover, nowhere in the 2014 Article does it state that WCS knew about or participated in the illegal activities being conducted by those that purchase and register companies with WCS. In fact, the 2014 Article quotes Mr. Pitts as stating WCS “fully complies with the law and doesn't have any knowledge of how clients use the companies he registers.” Doc. No. 19–12, p. 5. Although Mr. Pitts “recognize[s] that business entities (whether aged, shell or traditional) may be used for both good and ill.” Id. (emphasis added). The 2014 Article goes on to state that neither Mr. Pitts nor WCS have ever been sued or sanctioned,” and that businesses such as WCS are “perfectly legal.” Id. at 4–5. A fair reading of the 2014 Article does not carry the implication WCS seeks to attach to it. While the 2014 Article as a whole chronicles how some use incorporation services like WCS to conduct illegal activity, it makes a point to state that the services offered by WCS are perfectly legal.

The thrust of WCS's defamation claim is the alleged implication it believes is derived from the 2014 Article: that WCS is in the business of aiding others in forming businesses which are then used to further illegal objectives. After reviewing the 2014 Article as a whole, however, no reasonable person could reach such a conclusion. The “gist” of the 2014 Article is how some utilize the services offered by WCS, that of secrecy, privacy, and anonymity, to further illegitimate schemes. The Article makes repeated references to the fact that WCS has never done anything illegal, and that the production and sale of paper businesses is perfectly legal.

Conclusion

For the reasons discussed above, Defendants' converted motion for summary judgment is GRANTED. WCS seeks to capitalize on the re-publication of a three year old Article by latching on to minor factual inaccuracies. The defamatory sting WCS attaches to the Article does not exist. While some of the statements in the 2014 Article are no longer literally true, the “gist” is still substantially true: WCS is in the business of incorporating companies to be purchased by others; the main selling point is the “privacy” WCS's incorporation services can provide; and some have taken advantage of this “privacy” in order to further their own illegal activities. The 2014 Article clearly states that WCS's business is “perfectly legal,” but that some who use its services do so for illegal means. A fair reading of the 2014 Article as a whole does not, as WCS alleges, leave the impression that WCS actively facilitates these illegal activities, or even knows about the illegal activities of some of its clients. Moreover, WCS has not even alleged that CNBC intended or endorsed such an inference. The First Amendment does not allow litigants, like WCS, to seize upon minor inaccuracies in a publication to sue a publisher for defamation.

IT IS ORDERED Defendants' converted motion for summary judgment is GRANTED.

IT IS FURTHER ORDERED Plaintiff's Complaint is DISMISSED WITH PREJUDICE. -------- Notes: