UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIMEDX GROUP, INC.,

Plaintiff,

v. Civil Action No. 17-1925 (JDB)

DBW PARTNERS LLC, D/B/A THE CAPITOL FORUM, et al.,

Defendants.

MEMORANDUM OPINION

Before the Court is [18] defendants’ motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). Plaintiff MiMedx Group, Inc. (“MiMedx”) brought claims for libel, slander,

defamation, false light invasion of privacy, tortious interference with business relations, and false

advertising under the Lanham Act after defendants published articles that questioned MiMedx’s

sales practices. Defendants move the Court to dismiss each claim for failure to state a claim upon

which relief can be granted. For the reasons that follow, defendants’ motion will be granted in

part and denied in part.

BACKGROUND 1

MiMedx is a publicly traded medical-products corporation organized under Florida law

and headquartered in Georgia. Compl. for Damages & Injunctive Relief (“Compl.”) [ECF No. 1]

¶ 6. Id. Defendant DBW Partners LLC d/b/a The Capitol Forum (“The Capitol Forum”) is a firm

1 The following facts are derived from the allegations in defendants’ complaint and are assumed to be true for the purposes of deciding this motion to dismiss.

1 based in the District of Columbia that offers business and regulatory analysis to paid subscribers.

Id. ¶ 7. This lawsuit arises from articles that The Capitol Forum published about MiMedx and

communications related to those articles.

On August 21, 2017, The Capitol Forum “published an article entitled ‘MiMedx: Channel

Stuffing Accusations Resurface in Recent Counterclaim; Former Employees Corroborate

Allegations; A Close Look at Potential Risk’” [hereinafter “the August 21 article”]. Id. ¶ 23. The

August 21 article outlined allegations MiMedx’s former employees made in court filings against

MiMedx claiming that the company had engaged in “channel stuffing”—a practice by which a

company artificially inflates its sales and revenue figures by distributing more products to retailers

than the retailers can sell. Id. ¶¶ 19–25.

The same day, The Capitol Forum distributed this article to at least some MiMedx

shareholders via email [hereinafter “the August 21 email”]. Id. ¶ 24. The email included a

description of the August 21 article, which stated: “In the article, we detail channel stuffing

allegations and recent counterclaims which may pose as a regulatory risk for the company. The

article examines the allegations made by customers & former employees, the company’s response

to these claims, and the potential legal risks for MiMedx.” Id. ¶ 25 (emphasis added). The August

21 email concluded with an invitation to “schedule a call” with The Capitol Forum for more

information. Id. The Capitol Forum now acknowledges that the “reference to ‘customers’ in the

August 21 email was a mistake: as the underlying report . . . indicated, the allegations of channel

stuffing were contained in claims and counterclaims filed by former MiMedx employees,” not by

customers. Mem. P. & A. Supp. Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) [ECF No. 18-1] at 3.

As part of its “ongoing examination of allegations of channel stuffing made by former

MiMedx employees,” The Capitol Forum also submitted a Freedom of Information Act (“FOIA”)

2 request to the Department of Veterans Affairs, Office of the Inspector General (“OIG”). Compl.

¶ 28. The Capitol Forum determined from the OIG’s denial of its FOIA request that an OIG

investigation “involve[d] documents related to MiMedx.” Id. Meanwhile, MiMedx informed The

Capitol Forum “off-the-record that MiMedx had initiated contact with the OIG, that MiMedx was

voluntarily working with the OIG, and that MiMedx was specifically not a target of the

investigation.” Id. ¶ 30. On September 7, 2017, The Capitol Forum published another article titled

“VA Office of Inspector General Confirms Investigation Involving MiMedx Documents”

[hereinafter “the September 7 article”]. Id. ¶ 27. The article “omitted positive information” that

MiMedx had provided The Capitol Forum and instead relayed only “that the OIG’s inquiry

involved ‘documents related to MiMedx.’” Id. ¶¶ 29–30. As it had done with the August 21

article, the Capitol Forum promoted the September 7 article in an email, invited readers to schedule

a call for more information, and directed the email to at least some MiMedx shareholders. Id.

¶¶ 27–28.

MiMedx alleges that The Capitol Forum’s publications served as part of a “conspir[acy] to

adversely manipulate the stock price of MiMedx via false and/or misleading statements to

MiMedx’s shareholders, which were intended to cause those shareholders to sell their stock.” Id.

¶ 33. The Capitol Forum allegedly served “as a ‘shill’ for bearish traders in MiMedx stock” based

upon “a nefarious motive to benefit the interests of bearish traders in MiMedx stock at the expense

of the company, because those bearish traders included . . . friends, family, affiliates, and/or even

. . . themselves.” Id. ¶¶ 33–34. MiMedx states that its “stock price dropped” on both September

7 and September 8, 2017, and that its stock price declined by more than 20% overall between

August 21 and September 21, 2017. Id. ¶ 32.

3 On September 21, 2017, MiMedx filed this action against The Capitol Forum and

individuals who are principals or employees of The Capitol Forum: Trevor Baine, Teddy Downey,

Jake Williams, Miles Pulsford, Matt Treacy, and fictitiously named defendants Does 1-100. Id.

¶¶ 7–10. MiMedx alleges that The Capitol Forum’s description in its August 21 email of

allegations by “customers” constitutes libel (Count 1) and defamation (Count 3). Id. ¶¶ 36–41,

47–51. MiMedx further alleges that The Capitol Forum’s invitation to shareholders to “schedule

a call” for more information about these customer allegations is evidence that The Capitol Forum

“repeated the false and malicious statement(s),” constituting slander (Count 2). Id. ¶¶ 42–46.

MiMedx also asserts that the false and misleading content in The Capitol Forum’s articles and

emails violated MiMedx’s right to privacy by placing it in a false light in the public eye (Count 4),

id. ¶¶ 52–56; tortiously interfered with its business relations (Count 5), id. ¶¶ 57–61; and violated

the Lanham Act’s false advertising provision (Count 6), id. ¶¶ 62–68.

Defendants now move to dismiss each claim for failure to state a claim upon which relief

may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

LEGAL STANDARD

Rule 12(b)(6) provides for dismissal of a claim where the proponent has failed to state a

claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint must “give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp.

v. Twombly,

(2007) (citation omitted). To survive a motion to dismiss, “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

4 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Twombly,

(citation omitted). In short, “[f]actual allegations

must be enough to raise a right to relief above the speculative level.”

DISCUSSION

I. CHOICE OF LAW

In a diversity case, this Court generally employs the choice-of-law analysis of the District

of Columbia. See Mastro v. Potomac Elec. Power Co.,

(D.C. Cir. 2006); Mar-

Jac Poultry, Inc. v. Katz,

(D.D.C. 2011). “Under District of Columbia

law, the court must first determine if there is a conflict between the laws of the relevant

jurisdictions” and “[o]nly if such a conflict exists must the court then determine, pursuant to

District of Columbia choice of law rules, which jurisdiction has the ‘more substantial interest’ in

the resolution of the issues.” Young Women’s Christian Ass’n of the Nat’l Capital Area, Inc. v.

Allstate Ins. Co. of Canada,

(D.C. Cir. 2002). Factors relevant to this

substantial-interest determination include: “(a) the place where the injury occurred; (b) the place

where the conduct causing the injury occurred; (c) the domicile, residence, nationality, place of

incorporation and place of business of the parties; and (d) the place where the relationship is

centered.” District of Columbia v. Coleman,

(D.C. 1995).

MiMedx asserts that Georgia law applies to all claims except for its federal Lanham Act

claim because “MiMedx is headquartered in Georgia and stands to suffer injury there.” Compl.

¶ 35; Pl.’s Mem. P. & A. Opp’n Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”) [ECF No. 20] at 9 n.3.

Defendants note that District of Columbia law could also apply because it is where “[T]he Capitol

Forum is incorporated and domiciled, where it publishes its newsletter, where most of the

individual defendants live and work, and where the bulk of the reporting concerning MiMedx was

5 performed.” Defs.’ Mot. at 6 n.3. However, defendants maintain that “there is no need to resolve

any choice of law issue” because the laws of Georgia and the District of Columbia are virtually

identical. See

2 Because the Court concludes that the laws of Georgia and the District of

Columbia as applied to MiMedx’s claims do not conflict, the Court will apply the prevailing law

of both jurisdictions.

II. MIMEDX’S DEFAMATION CLAIMS (COUNTS 1–3)

MiMedx makes three related claims for libel, slander, and defamation. 3 Compl. ¶¶ 36–51.

First, MiMedx alleges The Capitol Forum committed libel (Count 1) and defamation (Count 3) by

its use of the word “customers” in the August 21 email. Id. ¶ 37, 48. MiMedx bases its slander

claim (Count 2) on the allegation that “Defendants repeated the false and malicious statement(s)”

in the August 21 email, i.e., that customers had alleged channel stuffing, “to MiMedx’s investors

and/or others by telephone or in-person.” Id. ¶ 43. 4

A claim for defamation under Georgia law requires “(1) a false and defamatory statement

concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the

defendant amounting at least to negligence; and (4) special harm or the actionability of the

statement irrespective of special harm.” Infinite Energy, Inc. v. Pardue,

(Ga.

2 Although MiMedx is organized under Florida law, Compl. ¶ 6, and at least one individual defendant is domiciled in New York, Compl. ¶¶ 11–12, both parties propose—and the Court agrees—that only Georgia or District of Columbia law would reasonably apply to the claims at issue here. 3 Written or printed defamation constitutes libel; oral defamation constitutes slander. Restatement (Second) of Torts § 568 (1977); see Ning Ye v. Holder,

(D.D.C. 2009) (applying DC law);

, 51-5-4. 4 In its opposition to defendants’ motion to dismiss, MiMedx attempts to expand its defamation claim to apply to the September 7 article. Pl.’s Opp’n at 18–20. However, its complaint alleges defamation, libel, and slander only as to the August 21 email. See Compl. ¶¶ 37, 43, 48. Because a Court ruling on a Rule 12(b)(6) motion to dismiss may only consider allegations included in the operative complaint, documents incorporated by reference in the complaint, and matters of which a court may take judicial notice, see Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

(2007), the Court will not consider MiMedx’s assertion in its brief that the September 7 article was defamatory.

6 Ct. App. 2011) (citing Mathis v. Cannon,

(Ga. 2002)); see also

, 51-5-4. The elements are substantively identical under District of Columbia law. See

Oparaugo v. Watts,

(D.C. 2005) (citing Crowley v. N. Am. Telecomms. Ass’n,

, 1173 n.2 (D.C. 1997)).

The fourth element—“special harm or the actionability of the statement irrespective of

special harm”— requires that a plaintiff either prove special damages, which “are limited to actual

pecuniary loss . . . specifically pleaded or proved,” Fed. Aviation Admin. v. Cooper,

(2012) (citing Restatement (First) of Torts § 575 cmts. a & b (Am. Law Inst. 1938)), or show

that the statements are “defamatory per se” because they are of a type “so likely to cause degrading

injury to the subject’s reputation that proof of that harm is not required to recover compensation,”

Franklin v. Pepco Holdings, Inc.,

(D.D.C. 2012). Defamatory statements

related to a plaintiff’s “fitness for the proper conduct of his lawful business, trade or profession”

generally constitute defamation per se. Restatement (Second) of Torts § 573 (Am. Law Inst. 1977)

(slander per se); see also Cottrell v. Smith,

, 780–81 (Ga. 2016) (stating that

“charges against another in reference to his trade, office, or profession, calculated to injure him

therein” constitutes defamation per se and renders the claim actionable without further proof of

special damages) (quoting

); Franklin,

(applying

District of Columbia law and noting that defamation per se includes “false statements that impute

to the subject . . . a matter adversely affecting the person’s ability to work in a profession” (citing

Restatement (Second) of Torts)).

No heightened pleading standard applies to defamation actions, and a court reviewing a

motion to dismiss need only determine “whether the factual allegations are sufficient to permit

[defendants] to respond to [plaintiff’s] claim of defamation and whether, construing the complaint

7 in the light most favorable to [plaintiff], it appears beyond doubt that he can prove no set of facts

that would entitle him to recover.” Oparaugo,

; see Eason v. Marine Terminals

Corp.,

(Ga. Ct. App. 2011) (reversing grant of motion to dismiss where

defamation complaint “included all that was required, namely ‘a short and plain statement of the

claim that [gave] the defendant[s] fair notice of what the claim [was] and a general indication of

the type of litigation involved . . .’” (citation omitted)).

Defendants first argue that MiMedx fails properly to allege the existence of a false and

defamatory statement because “the single word MiMedx challenges is not defamatory in the

context of the overall email” in that it neither rendered the email “substantially false” nor caused

“any incremental harm above and beyond the harm that would have been caused by the remainder

of the publication, which is not challenged.” Defs.’ Mot. at 8–13 (quotations at 8, 12). MiMedx

responds that “the use of the word ‘customers’ . . . substantively changed the meaning of the entire

communication” because “there is a significant difference between allegations by a company’s

customers and its disgruntled former employees” and further because it “made it appear that the

article contained new or additional allegations that might corroborate the former employees’

allegations.” Pl.’s Opp’n at 16–18. MiMedx asserts also that this reference to channel-stuffing

allegations by customers was defamatory because it “injured MiMedx’s reputation,” “tended to

expose MiMedx to negative views by . . . shareholders,” and “diminished” “the value of the

company . . . in the eyes of the trading public.” Compl. ¶¶ 26, 38–39.

Under District of Columbia law, “[w]hen confronted with a motion to dismiss, a court must

evaluate” as a matter of law “[w]hether a statement is capable of defamatory meaning.” Jankovic

v. Int’l Crisis Grp.,

(D.C. Cir. 2007) (citation omitted). “A statement is

‘defamatory’ if it tends to injure the plaintiff in his trade, profession or community standing, or

8 lower him in the estimation of the community.” Moss v. Stockard,

(D.C.

1990); see also Restatement (Second) of Torts § 559 (defining a defamatory communication as

one that “tends so to harm the reputation of another as to lower him in the estimation of the

community or to deter third persons from associating or dealing with him”).

In contrast, Georgia law provides that “the question of whether a published statement is

defamatory is a question for the jury,” and “[o]nly when ‘the statement is not ambiguous and can

reasonably have but one interpretation, the question is one of law for the judge.’” Mar-Jac Poultry,

(citation omitted). A statement that “mak[es] charges against another in

reference to his trade, office, or profession, calculated to injure him therein” constitutes defamation

per se.

(a)(3) (slander per se); Lucas v. Cranshaw,

(Ga. Ct. App. 2008) (explaining that Georgia case law has incorporated the definition of slander

into the definition of libel, rendering “that which is slander per se also . . . libel per se”). “An

allegedly defamatory statement[] must be construed in the context of the entire publication, as a

whole, to determine whether it was potentially defamatory.” Mar-Jac Poultry, 773 F. Supp. 2d at

114–15. “[I]n considering whether a writing is defamatory as a matter of law, [a court] look[s] not

at the evidence of what the extrinsic circumstances were at the time indicated in the writing, but at

what construction would be placed upon it by the average reader.” Macon Tel. Publ’g Co. v.

Elliott,

(Ga. Ct. App. 1983).

Here, the Court concludes that the contested statement is at least “capable of defamatory

meaning” under District of Columbia law, see Franklin,

(emphasis added)

(citation omitted), in that it was concededly false that customers had made allegations of channel

stuffing against MiMedx and the statement alleged that MiMedx engaged in a wrongful

commercial practice, which would “tend[] to injure” MiMedx’s “trade, profession or community

9 standing,” see Moss,

. Applying Georgia law, the Court concludes that whether

the statement is defamatory is ambiguous. The statement references MiMedx’s “trade . . . or

profession” and MiMedx alleges that The Capitol Forum acted purposely in a way “calculated to

injure” MiMedx by conspiring to devalue its stock price, which would support a finding that the

statement was defamatory per se. However, the statement is less clearly defamatory when

“construed in the context of the entire publication”—that is, the August 21 email, which also

attributed the accusations of channel stuffing to former employees. The Court concludes that,

based on the allegations in the complaint, it is ambiguous under Georgia law “what construction

. . . the average reader” would place upon the inclusion of the word “customers” in the August 21

email. See Macon Tel.,

. That means that the Court cannot conclude as a matter

of law that, under Georgia law, the statement is not defamatory. Under the laws of either

jurisdiction, then, MiMedx has sufficiently pleaded the existence of a defamatory statement to

survive a motion to dismiss.

As to the remaining elements of a cause of action for defamation, MiMedx alleges—and

The Capitol Forum concedes—that the August 21 email’s reference to “‘consumers’—as opposed

to ‘former employees’”—was false. See Compl. ¶ 26; Defs.’ Mot. at 3. Moreover, as explained

above, the statement is at least arguably defamatory. The parties do not dispute that the statement

concerned MiMedx. Accordingly, MiMedx has pleaded the first element of a defamation claim.

The Capitol Forum allegedly published this statement to third parties in written form via email and

oral form either by “telephone or in-person” communications, thus satisfying the second element.

See

¶¶ 23–25, 38, 43, 48. MiMedx further asserts that The Capitol Forum acted purposefully

in publishing the contested statements in order to erode the value of the company’s stock and

thereby to profit, thus satisfying the requirement that the defendant have acted with at least

10 negligence.

¶¶ 3–5, 23–25, 33–34. MiMedx’s complaint also satisfies the fourth element, as

it can be construed either to allege defamation per se in the form of statements designed to injure

a plaintiff’s business reputation, see

¶¶ 3–5, 38; or to allege special damages in the form of a

diminution of company value, 5 see id. ¶¶ 5, 32–34. Thus, MiMedx’s complaint alleges each

element of a claim for defamation (and/or libel and slander), and defendants’ motion to dismiss

MiMedx’s claims for defamation, libel, and slander will be denied.

Defendants seek to impose an additional pleading requirement, arguing that MiMedx was

required to allege that defendants acted with actual malice and that its failure to do so justifies

dismissal of MiMedx’s claims. Defs.’ Mot. at 13–27. MiMedx responds simply that its complaint

“alleges numerous facts from which to conclude that Defendants acted against MiMedx with

intentional or reckless disregard for the truth,” including allegations of “the existence of several

types of circumstantial evidence sufficient to demonstrate actual malice.” Pl.’s Opp’n at 9, 21.

More specifically, MiMedx proposes that The Capitol Forum purposely fabricated a fictitious

channel-stuffing allegation by “customers” in order to manipulate MiMedx’s stock price. Id. at

20. However, MiMedx does not address the threshold question of whether the actual malice

standard applies to the allegedly defamatory statement at issue in this case.

“The constitutional guarantees” of freedom of speech and of the press require that a public

figure may not recover damages related to a defamatory statement made in relation to a matter of

5 Defendants also argue that MiMedx has failed to plead compensable damages and that this further justifies dismissal. Defs.’ Mot. at 27–28. The parties disagree as to whether a corporation claiming defamation may claim damages in the form of diminution of the company’s stock price as opposed to solely lost profits. See Defs.’ Mot. at 27–28; Pl.’s Opp’n at 26–28. However, special damages are not limited to lost profits as a matter of law. Webster v. Wilkins,

(Ga. Ct. App. 1995) (“The special damages necessary to support an action for defamation, where the words are not actionable in themselves[,] must be the loss of money, or of some other material temporal advantage capable of being assessed in monetary value. The loss of income, of profits, and even of gratuitous entertainment and hospitality will be special damage if the plaintiff can show that it was caused by the defendant’s words.” (citation omitted)). MiMedx alleges damages that may be quantified in monetary form, see Compl. ¶¶ 32, 39, and thus its complaint does not fail as a matter of law on this account. 11 public concern “unless he proves that the statement was made with ‘actual malice’—that is, with

knowledge that it was false or with reckless disregard of whether it was false or not.” N.Y. Times

v. Sullivan,

, 279–80 (1964). However, “[w]hether a person is a public figure is a

question of law that requires the court to review the nature and extent of the individual’s

participation in the specific controversy that gave rise to the [alleged] defamation.” Cottrell,

(citation omitted). Only then must a public-figure plaintiff further “persuade the

fact-finder that the defendant acted with actual malice in publishing the defamatory statements by

clear and convincing evidence.” See Competitive Enter. Inst. v. Mann,

, 1251–52

(D.C. 2016); see also Mathis,

.

A plaintiff may be a public figure for all purposes or a limited-purpose public figure.

Georgia courts apply a three-part test to determine if an individual is a limited-purpose public

figure, under which the court “must isolate the public controversy, examine the plaintiff's

involvement in the controversy, and determine whether the alleged defamation was germane to the

plaintiff’s participation in the controversy.” Mathis,

(quoting Atl. J.-Const. v.

Jewell

(Ga. Ct. App. 2001)); see also Jankovic, 822 F.3d at 586 (stating that

“to be a limited-purpose public figure, [one] must have ‘thrust’ himself to the ‘forefront’ of the

public controversy at issue” (citation omitted)).

Defendants argue that MiMedx is a public figure because it is a public corporation. Defs.’

Mot. at 14–18. Past decisions have indeed found public corporations to be public figures in a

variety of contexts. See OAO Alfa Bank v. Ctr. for Pub. Integrity,

, 47–48

(D.D.C. 2005); Metastorm, Inc. v. Gartner Grp., Inc.,

(D.D.C. 1998).

However, neither this Court nor the Supreme Court has ever announced a per se rule that all public

corporations are public figures for all matters in all defamation actions against all defendants.

12 Defendants point to the principle in OAO Alfa Bank that “[c]orporate plaintiffs are treated as

public figures as a matter of law in defamation actions brought against mass media defendants

involving matters of legitimate public interest,”

, as support for the

proposition that MiMedx must be found to be a public figure here. See Defs.’ Mot. at 14.

However, MiMedx does not concede that The Capitol Forum is a “mass media defendant[]” for

the purpose of the rule, see OAO Alfa Bank,

; Compl. ¶ 3 (calling The Capitol

Forum a “supposed subscription-based media outlet” (emphasis added)), 7 (“The Capitol Forum

purports to be a subscription-based media outlet” (emphasis added)), and the Court does not find

The Capitol Forum’s status as a member of the mass media so clear as to take judicial notice of

such a fact. Upon review of MiMedx’s complaint (and construing the facts alleged in MiMedx’s

favor, as the Court must do at the motion-to-dismiss phase), the Court finds that MiMedx has not

alleged facts that establish that it is a public figure or limited-purpose public figure. MiMedx may

be able to produce a factual basis for a finding that it should be considered a private figure with

regard to the statements alleged in this case. Under these conditions, there is no basis for imposing

on MiMedx an obligation to anticipate in its complaint the need to plead facts to defend against

defendants’ assertion that it is a public figure. Cf. Gomez v. Toledo,

(1980)

(finding “no basis for imposing on the plaintiff an obligation to anticipate [a qualified-immunity]

defense by stating in his complaint that the [police superintendent] defendant acted in bad faith”).

MiMedx may later be deemed a public figure or limited-purpose public figure, but at this stage its

failure to allege actual malice in its complaint does not support dismissal of its claims for

defamation, libel, or slander. Accordingly, defendants’ motion to dismiss these claims will be

denied.

13 III. MIMEDX’S FALSE LIGHT CLAIM (COUNT 4)

MiMedx’s fourth claim for relief alleges that defendants’ conduct “wrongfully placed

MiMedx in a false light in the public eye.” Compl. ¶ 53. Specifically, MiMedx alleges that

defendants “made literally false statements as well as misleading statements (e.g., those which

purposely omitted facts or context tending to be favorable to MiMedx, or made suggestions

concerning MiMedx that ran counter to the actual facts known by [d]efendants) in their articles,

e-mails, and other discussions with shareholders.”

Both Georgia and the District of Columbia have adopted the Second Restatement of Torts’

articulation of a cause of action for false light invasion of privacy. Doe v. Bernabei & Wachtel,

PLLC,

(D.C. 2015) (noting that the District of Columbia has adopted the

Restatement articulation of invasion of privacy torts, including false light); Smith v. Stewart,

(Ga. Ct. App. 2008) (citing Restatement articulation of false light invasion of

privacy); Thomason v. Times-Journal,

(Ga. Ct. App. 1989) (same). “In order

to sustain a false light invasion of privacy claim, a plaintiff must show that the defendant

knowingly or recklessly published falsehoods about him or her and, as a result, placed him or her

in a false light which would be highly offensive to a reasonable person.” Smith,

(citing Thomason,

; Restatement (Second) of Torts § 652E); see also Doe 116

A.3d. at 1267 (applying same standard).

The Restatement unequivocally states that “[a] corporation, partnership or unincorporated

association has no personal right of privacy” and “therefore no cause of action” for false light

invasion of privacy. Restatement (Second) of Torts § 652I, cmt. C. MiMedx argues that no

Georgia case has explicitly adopted the Restatement’s prohibition of corporations pursuing false

light claims, and therefore its claim is not barred under Georgia law. Pl.’s Opp’n at 29–30. But

14 MiMedx also fails to identify any instance in which a Georgia court—or any other court—has

recognized such a claim as one upon which relief may be granted. See id.

This Court has previously reasoned that because the District of Columbia had adopted the

Restatement’s articulation of the false light tort, it also adopted the Restatement’s prohibition

against corporate entities bringing false light claims. S. Air Transp., Inc. v. Am. Broad. Cos.,

(D.D.C. 1987). The same reasoning applies to Georgia law. Because Georgia,

like the District of Columbia, has adopted the Restatement’s articulation of a cause of action for

false light invasion of privacy, this Court concludes that Georgia also recognizes the Restatement’s

prohibition on corporate plaintiffs bringing false light claims.

Accordingly, since MiMedx is a corporation, it may not make a claim for false light

invasion of privacy under Georgia or District of Columbia law. Because no amendment to its

complaint could remedy this deficiency, its claim for false light invasion of privacy will be

dismissed.

IV. TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS (COUNT 5)

MiMedx’s fifth claim for relief asserts that defendants’ conduct tortiously interfered with

its business relations. Compl. ¶¶ 57–67. MiMedx alleges that “Defendants’ conduct . . . was

tortious, malicious, and independently wrongful” and that “Defendants’ publications caused third

parties, including customers, investors, and creditors, to fail to enter into anticipated business

relationships with MiMedx, which proximately damaged MiMedx.”

¶¶ 58–59.

Under Georgia law, a claim for tortious interference with business relations requires proof

that defendant “(1) acted improperly and without privilege, (2) acted purposely and maliciously

with the intent to injure, (3) induced a third party or parties not to enter into or continue a business

relationship with the plaintiff, and (4) caused plaintiff financial injury.” Camp v. Eichelkraut, 539

(Ga. Ct. App. 2000). Under District of Columbia law, “[a] prima facie case of

tortious interference with business relations requires: ‘(1) existence of a valid contractual or other

business relationship; (2) [the defendant’s] knowledge of the relationship; (3) intentional

interference with that relationship by [the defendant]; and (4) resulting damages.’” Whitt v. Am.

Prop. Constr.,

(D.C. 2017) (citation omitted).

Although the elements of a tortious interference with business relations claim differ under

District of Columbia and Georgia law, the Court identifies no conflict that would require

application of choice-of-law analysis because MiMedx’s allegations of tortious interference fail to

allege a sufficient factual basis to satisfy the pleading standard of Twombly and Iqbal under either

jurisdiction’s standard. MiMedx uses the labels of “customers, investors, and creditors” to

describe hypothetical categories of business relationships with which The Capitol Forum could

have interfered but indicates no specific business relationship affected by the alleged interference.

MiMedx alleges only that defendants sought to manipulate the market for MiMedx stock generally.

MiMedx has thus failed “to raise a right to relief above the speculative level,” Twombly

, and its claim for tortious interference with business relations will be dismissed. 6

V. LANHAM ACT FALSE-ADVERTISING CLAIM (COUNT 6)

In its sixth claim for relief, MiMedx alleges that defendants’ conduct “constituted a

violation of the federal Lanham Act by virtue of the false and misleading statements made to

MiMedx’s shareholders,” which “resulted in a significant diminution in reputation and value for

the company.” Compl. ¶¶ 63, 66. More specifically, MiMedx alleges that “[d]efendants’

6 The parties disagree about whether and how a tortious interference with business relations claim might apply to the relationship between a company and its shareholders. See Defs.’ Mot. at 35; Pl.’s Opp’n at 32–33. Because MiMedx does not allege any specific business relationship—with shareholders or otherwise—the Court does not decide whether such a claim would be cognizable under Georgia or District of Columbia law.

16 statements to MiMedx’s shareholders were a cause, if not the primary cause, of [MiMedx’s] stock

price depreciation.” Id. ¶ 5.

Section 43(a) of the Lanham Act, as amended and codified at

, provides

a cause of action for false advertising when a person uses a false or misleading statement or

description of fact “in commercial advertising or promotion . . . [that] misrepresents the nature,

characteristics, qualities, or geographic origin of . . . another person’s goods, services, or

commercial activities.”

(a)(1)(B). “To invoke the Lanham Act’s cause of action

for false advertising, a plaintiff must plead . . . [1] an injury to a commercial interest in sales or

business reputation [2] proximately caused by the defendant’s misrepresentations.” Lexmark Int’l,

Inc. v. Static Control Components, Inc.,

, 131–32, 140 (2014). Under the proximate

causation prong, the plaintiff “must show economic or reputational injury flowing directly from

the deception wrought by the defendant’s advertising,” which “occurs when deception of

consumers causes them to withhold trade from the plaintiff.”

. “[L]ike any other element

of a cause of action,” proximate causation “must be adequately alleged at the pleading stage in

order for the case to proceed.”

at 134 n.6. “If a plaintiff’s allegations, taken as true, are

insufficient to establish proximate causation, then the complaint must be dismissed.”

MiMedx has failed to allege adequately a violation of the Lanham Act. MiMedx alleges

that The Capitol Forum made false or misleading statements, but it does not connect these

statements to a competitive injury related to MiMedx’s commercial interests. For example,

MiMedx does not allege that customers withheld trade because of the allegedly false and

misleading communications or that MiMedx suffered any loss of revenue. In fact, MiMedx does

not even allege that these allegedly false and misleading statements reached its customers. Thus,

17 MiMedx has failed to state a claim for false advertising under the Lanham Act. MiMedx’s claim

for violation of the Lanham Act accordingly will be dismissed.

CONCLUSION

For the reasons explained above, defendants’ motion to dismiss will be denied as to

Mimedx’s libel, slander, and defamation claims. Mimedx’s remaining claims for false light

invasion of privacy, tortious interference with business relations, and for violation of the Lanham

Act will be dismissed for failure to state a claim upon which relief may be granted. A separate

Order consistent with this Memorandum Opinion has been issued on this date.

/s/

JOHN D. BATES United States District Judge

Dated: September 28, 2018

18