       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2       Amway Corp. v. Procter                          No. 01-2561
    ELECTRONIC CITATION: 2003 FED App. 0360P (6th Cir.)           & Gamble Co., et al.
                File Name: 03a0360p.06
                                                              Before: BATCHELDER and CLAY, Circuit Judges;
                                                                    SCHWARZER, Senior District Judge.*
UNITED STATES COURT OF APPEALS
                                                                                _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                     COUNSEL

AMWAY CORPORATION ,             X                         ARGUED: Charles L. Babcock, JACKSON WALKER,
       Plaintiff-Appellant,      -                        Houston, Texas, for Appellant. Daniel J. Stephenson,
                                 -                        DYKEMA GOSSETT, Ann Arbor, Michigan, Stephen M.
                                 -   No. 01-2561          Shapiro, MAYER, BROWN, ROWE & MAW, Chicago,
          v.                     -                        Illinois, for Appellees. ON BRIEF: Charles L. Babcock,
                                  >                       David T. Moran, JACKSON WALKER, Houston, Texas, J.
                                 ,
THE PROCTER & GAMBLE                                      A. Cragwall, Jr., WARNER, NORCROSS & JUDD, Grand
                                 -
COMPANY ; PROCTER &                                       Rapids, Michigan, Jack C. Berenzweig, James P. Sobieraj,
                                 -                        BRINKS, HOFER, GILSON & LIONE, Chicago, Illinois, for
GAMBLE DISTRIBUTING              -                        Appellant. Daniel J. Stephenson, Michael P. Farrell,
COMPANY ; DINSMORE &             -                        DYKEMA GOSSETT, Ann Arbor, Michigan, Kathleen
SHOHL, LLP,                      -                        McCree Lewis, Donald S. Young, DYKEMA GOSSETT,
        Defendants-Appellees, -                           Detroit, Michigan, Eric C. Lund, DYKEMA GOSSETT,
                                 -                        Grand Rapids, Michigan, Stephen M. Shapiro, MAYER,
                                 -
SIDNEY SCHWARTZ; KENNETH -                                BROWN, ROWE & MAW, Chicago, Illinois, Stanley M.
                                                          Chesley, Fay E. Stilz, WAITE, SCHNEIDER, BAYLESS &
LOWNDES,                         -                        CHESLEY, Cincinnati, Ohio, John M. Kunst, Jr., John W.
                 Defendants. -                            Beatty, Brian S. Sullivan, DINSMORE & SHOHL,
                                 -                        Cincinnati, Ohio, John M. DeVries, MIKA, MEYERS,
                                N                         BECKETT & JONES, Grand Rapids, Michigan, for
      Appeal from the United States District Court        Appellees. David L. Marburger, BAKER & HOSTETLER,
 for the Western District of Michigan at Grand Rapids.    Cleveland, Ohio, for Amici Curiae.
No. 98-00726—Robert Holmes Bell, Chief District Judge.
                                                            BATCHELDER, J., delivered the opinion of the court, in
                 Argued: June 12, 2003                    which CLAY, J., joined. SCHWARZER, D. J. (pp. 17-21),
                                                          delivered a separate concurring opinion.
          Decided and Filed: October 8, 2003


                                                              *
                                                               The Honorab le William W S chwarzer, Senior United States District
                                                          Judge for the Northern District of California, sitting by designation.

                            1
No. 01-2561                    Amway Corp. v. Procter        3    4    Amway Corp. v. Procter                      No. 01-2561
                                 & Gamble Co., et al.                  & Gamble Co., et al.

                    _________________                                            PROCEDURAL HISTORY
                        OPINION                                     This case represents the third lawsuit in what the district
                    _________________                             court below correctly described as “a long history of
                                                                  corporate warfare between Amway and P&G.” Amway
   ALICE M. BATCHELDER, Circuit Judge. Plaintiff                  originally brought this action against P&G, alleging tortious
Amway Corporation (“Amway”) appeals from the district             interference with business relations, after Sidney Schwartz
court’s order granting summary judgment in favor of               (“Schwartz”), the creator and editor of an anti-Amway
defendants The Procter and Gamble Company, The Procter            website entitled Amway: The Untold Story, published a
and Gamble Distributing Company (collectively “P&G”), and         complaint filed by P&G against Amway in a Texas federal
the law firm of Dinsmore & Shohl (“Dinsmore”) (P&G and            district court, alleging, among other things, that Amway
Dinsmore collectively “Appellees”), in Amway’s diversity          operates as an illegal pyramid scheme. Amway amended its
action raising a Michigan state-law claim of “tortious            complaint to add Dinsmore, Schwartz, and Kenneth Lowndes
interference with contract and with actual and prospective        (“Lowndes”) as defendants.
business relations,” over the publication on the internet of an
allegedly defamatory complaint filed by P&G in federal court.       P&G, Dinsmore, and Schwartz moved for summary
Following the close of extensive discovery in this corporate      judgment, arguing that the website was protected speech; that
grudge match, which included the depositions of some eighty       Amway was a public figure and needed to prove actual
witnesses, the district court found that there was no evidence    malice; that there was no evidence that the defendant’s
of a conspiracy between the Appellees and the other               actions interfered with any of Amway’s business
defendants to publish the complaint; that Amway had failed        relationships; and that Amway could not prove the existence
to show that the Appellees acted with actual malice; and, in      of a conspiracy among the defendants. Amway filed a 119-
the alternative, that the Appellees’ actions were protected by    page brief in opposition to the motion, with more than 200
Michigan’s “fair reporting privilege.” On appeal, Amway           exhibits, arguing that sufficient evidence existed for a
argues that, because the Appellees engaged in commercial          reasonable trier of fact to find in Amway’s favor. The district
speech, Amway does not need to prove actual malice in this        court, who had jurisdiction over this diversity action pursuant
case; that questions of material fact exist as to the existence   to 28 U.S.C. § 1332, entered an Order and Partial Judgment
of a conspiracy; and that Michigan’s reporting privilege for      granting Appellees’ motions for summary judgment, but
public documents does not protect parties such as P&G and         denied Schwartz’s motion after finding him to be in a
Dinsmore who participated in both the filing of the               “completely different posture” than P&G and Dinsmore.
documents in a court proceeding and the publication of those      Amway and Schwartz subsequently “settled their differences”
court documents on the internet. Because we find that the         and entered into a stipulation dismissing all claims and
Michigan fair reporting privilege does apply to the Appellees’    counterclaims between them. The district court made its
presumed publication of public court documents on the             summary judgment order final by entering a default judgment
internet, we will affirm the judgment of the district court.      against Lowndes, who was the last defendant remaining
                                                                  before the district court. Amway timely appealed “the Order
                                                                  and Partial Judgment and all prior rulings in this action,” as
                                                                  well as an order denying its motion “to supplement the record
No. 01-2561                         Amway Corp. v. Procter            5    6    Amway Corp. v. Procter                     No. 01-2561
                                      & Gamble Co., et al.                      & Gamble Co., et al.

in opposition to Defendant’s summary judgment motions.”                    the rumor throughout the world. Following this new
This Court has jurisdiction to hear this appeal pursuant to 28             “outbreak,” P&G learned that Randy Haugen, an Amway
U.S.C. § 1291.                                                             distributor in Utah, had broadcast an audio version of the
                                                                           rumor via Amway’s internal business communications system
                 FACTUAL BACKGROUND                                        in 1995. In 1996, P&G brought suit against Haugen and
                                                                           Amway in the Federal District Court of Utah, Procter &
   Recitation of the extensive and hate-filled history between             Gamble Co. v. Haugen, No. 1:95-CV-0094, 1998 U.S. Dist.
P&G1 and Amway2 would take a writing as long as both the                   LEXIS 22984 (D. Utah Sept. 4, 1998), “claiming that as a
Old and New Testaments and involve at least one of the Good                result of the subject message and other similar missives
Book’s more prominent players. Although each side would                    disseminated by defendants, P&G lost customers concerned
likely argue, if given the chance, that its opponent was in the            about supporting Satan through their purchase of P&G
garden advising the serpent when Eve took her first bite of the            products.” Haugen I, 222 F.3d at 1269. The district court
apple, for our purposes we need only go back to the 1970s                  granted Amway’s motion for summary judgment, finding that
and Satan’s rumored more recent activity with and interest in              the message did not relate to qualities or characteristics of
soap products.                                                             P&G’s products and, therefore, the claim fell outside the
                                                                           ambit of the Lanham Act. Id. at 1267. The Tenth Circuit
   For more than twenty years, rumors of a relationship                    agreed with the district court’s holding, but nonetheless
between Lucifer and the soap manufacturer P&G—some                         reversed the district court, deciding that the lower court
spread by Amway’s distributors—have circled the globe,                     should also look at whether the subject message was clearly
dogging P&G like a hound of hell “despite every effort to                  related to P&G’s “commercial activities,” a question the
eliminate [the rumors] through both public relations and                   appellate court admitted P&G failed properly to raise below.
litigation.” See Procter & Gamble Co. v. Haugen, 222 F.3d                  Id. at 1272. On remand, the district court dismissed all of
1262, 1267-69 (10th Cir. 2000) (“Haugen I”).3 The 1990s                    P&G’s claims that remained. Procter & Gamble Co. v.
and the widespread use of the internet brought a resurgence of             Haugen, 158 F. Supp. 2d 1286 (D. Utah 2001), and the Tenth
                                                                           Circuit affirmed. Procter & Gamble Co. v. Haugen, 317 F.3d
                                                                           1121 (10th Cir. 2003) (“Haugen II”).
    1
      P&G manufacturers and distributes numerous products for personal
care, household use, and consumption, including detergents, cosmetics,        While searching for information on the Amway
and cleaning agents.                                                       Corporation during the prosecution of the Utah suit, an
                                                                           attorney at Dinsmore who was representing P&G in that
    2                                                                      action discovered the website created and maintained by
      Amway also sells numerous consumer products that are in direct
competition with P&G products. Amway sells through a network of            Schwartz, a self-described “long-time Amway opponent.”
distributors, who in turn sell the prod ucts to other distributors and     The website contained extensive information and
consum ers.                                                                documentation on Amway. Schwartz had maintained his site
    3                                                                      for eight months and accumulated thousands of pages of news
     The most common version of the ru mor involve s P& G’s President’s    articles, emails, and court documents from cases filed against
appearing on a contemp orary television talk show, from Merv G riffin to
Oprah W infrey, and confessing that profits from P& G go to suppo rt the   Amway. In October of 1996, Dinsmore attorneys met with
Church of Satan.                                                           Schwartz at his Oregon home and retained him as a “non-
No. 01-2561                          Amway Corp. v. Procter             7    8       Amway Corp. v. Procter                            No. 01-2561
                                       & Gamble Co., et al.                          & Gamble Co., et al.

testifying consultant,” to assist Dinsmore in “obtaining                     holding, including the judgment based upon res judicata, the
evidence and information about Amway that might be useful                    dismissal of P&G’s Lanham Act claims, and the dismissal of
in the Utah litigation, and to provide leads concerning other                P&G’s civil RICO claims. See Procter & Gamble Co. v.
potential sources of such evidence.”4 To aid Schwartz’s                      Amway Corp., 242 F.3d 539, 567 (5th Cir. 2001). It appears
ability to assist in the Utah proceedings, Dinsmore provided                 from the record that the remaining claims in this case were
Schwartz with copies of some of the filings in the Utah case,                scheduled for trial in January of 2003, but it is unclear from
as well as copies of public filings in two other cases: Cairns               the parties’ briefs whether there has been any conclusion to
v. Amway Corp., No. C-1-84-0783 (S.D. Ohio 1984), and                        the proceedings.
Setzer v. Amway Corp., No. 6:86-1898-3 (D.S.C. 1986).
                                                                               At some point after P&G filed its lawsuit in Texas,
   P&G discovered in the course of the Utah litigation that                  Schwartz asked Dinsmore for a copy of the Texas complaint.
Haugen’s dissemination of the rumor of P&G’s satanic                         After Dinsmore refused to supply Schwartz with any
connections extended into Texas. P&G eventually brought                      documents filed in the Texas litigation, Schwartz obtained a
suit in Texas, alleging claims almost identical to the claims                copy of the complaint on his own and billed Dinsmore for his
brought in the Utah case, and also claiming fraud and specific               copying expenses.6 Schwartz eventually posted the entirety
violations of the RICO Act stemming from Amway’s                             of some of the documents from the earlier cases—including
allegedly illegal pyramid structure. Procter & Gamble Co. v.                 the Setzer complaint—that Dinsmore had provided him, as
Amway Corp., 80 F. Supp. 2d 639 (S.D. Tex. 1999).5 The                       well as the Texas complaint he had obtained on his own.
Texas district court dismissed a majority of P&G’s claims on
res judicata grounds following the dismissal of the factually                   In the present action, Amway identified ninety-nine
similar claims by the Utah district court. The Texas district                statements published on Schwartz’s website that it claims are
court dismissed the remaining claims on several other                        falsehoods. Of those, eighteen were attributable to the
grounds, including standing and the expiration of state                      Appellees. These eighteen statements include sixteen
statutes of limitation. Although the Fifth Circuit affirmed                  paragraphs in the Texas complaint, involving allegations that
part of the district court’s dismissal of P&G’s claims, the                  Amway is an illegal pyramid scheme and that Amway
circuit court reversed a majority of the district court’s                    violated the RICO Act, and two statements in the complaint
                                                                             filed in the Setzer case, in which neither P&G nor Dinsmore
                                                                             was involved. Amway concedes that both complaints are
    4                                                                        public documents filed in a federal district court and available
      Dinsmore retained Schwartz from N ovember, 199 6, through
Janu ary, 1998 , at a rate o f $25 .00 p er hour for his tim e, and they
                                                                             to the public.
reimbursed him for any copying costs. In total, P&G , through Dinsmore,
paid Schwartz $2,704.11 before terminating the relationship.
                                                                                 6
    5
                                                                                   Schw artz states in his depo sition that P&G agreed to reimburse his
        Over the years, Amwa y has also suffered from allegations that,      copying expense for the Texas complaint, and that he prepared an invoice
because of its corporate structure and distributor network, Amway            that he sent to Dinsmore. In the record, an attorney for Dinsmore adm its
operates as an illegal pyramid scheme. In 1979, in response to these         receiving the invoice but claims payment was never authorized. The
allegations, and following a four-year investigation and an administrative   record contains no d efinitive proof of whether Schwartz was in fact
trial, the Federal Trade Commission determined that Amway was not an         reimbursed. For summary judgment purposes, we will assume Dinsmore
illegal pyramid. In re Amway, 93 F.T.C. 618 , 631, 716-17 (19 79).           paid the invoice.
No. 01-2561                    Amway Corp. v. Procter         9    10   Amway Corp. v. Procter                       No. 01-2561
                                 & Gamble Co., et al.                   & Gamble Co., et al.

                         ANALYSIS                                  was undertaken with a malicious and manifest disregard for
                                                                   the rights of Amway. The district court, clearly frustrated
Standard of Review                                                 with both parties, narrowed its focus in this case down to
                                                                   what it believed to be the key issue before it—Amway’s
   We review a district court’s grant of summary judgment de       effort to recover damages for a speech tort committed by
novo, using the same standard under Rule 56(c) used by the         Appellees. The court’s opinion correctly focuses on the fact
district court, Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.     that Amway’s only allegation involves the Appellees’ action
1999) (en banc), and we consider the record as it stood before     of giving the documents to Schwartz with the intent that the
the district court at the time of its ruling. Niecko v. Emro       documents would be posted on the internet. In finding for the
Marketing Co., 973 F.2d 1296, 1303 (6th Cir. 1992).                Appellees, the court made several observations: (1) the
Summary judgment is proper if “the pleadings, depositions,         evidence does not support a finding of a conspiracy; (2) not
answers to interrogatories, and admissions on file, together       every document allegedly provided by the Defendants is at
with the affidavits, if any, show that there is no genuine issue   issue in the case; (3) Amway attributes only eighteen
as to any material fact and that the moving party is entitled to   allegedly defamatory statements to the Defendants; (4) all the
a judgment as a matter of law.” FED . R. CIV . P. 56(c). We        posted documents were publically available; (5) none of the
view the evidence, all facts, and any inferences that may be       allegedly defamatory statements is new; (6) Amway is a
drawn from the facts in the light most favorable to the            public figure; and (7) the suit is really about business
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith             competition and bad blood rather than about the spread of
Radio Corp., 475 U.S. 574, 587 (1986). To withstand                rumors or the published attacks. The court went on to find
summary judgment, the non-movant must present sufficient           that the relationship between Schwartz and the Appellees was
evidence to create a genuine issue of material fact. Klepper       not so irregular as to require an inference of a conspiracy
v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). A mere       under Michigan law, and Amway failed to provide any actual
scintilla of evidence is insufficient; “there must be evidence     evidence of an agreement between the parties indicating their
on which the jury could reasonably find for the [non-              desire to interfere with Amway’s business relations.
movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,           Additionally, the court found that the speech alleged to be
252 (1986). Entry of summary judgment is appropriate               defamatory was privileged and subject to First Amendment
“against a party who fails to make a showing sufficient to         protections, and that Amway—as a public figure—failed to
establish the existence of an element essential to that party’s    prove not only that the speech was false, but that the
case, and on which that party will bear the burden of proof at     Defendants acted with malice or with the knowledge that their
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).        statements were false or made with reckless disregard of
                                                                   whether they were false. Finally, the district court granted the
Amway’s Claim                                                      Defendants’ motion for summary judgment by applying
                                                                   Michigan’s fair reporting privilege, which protects
  Amway asserts that Schwartz and Appellees conspired to           individuals who fairly and accurately report information that
disrupt the business structure and relationships of Amway by       substantially represents matters contained in court records.
disseminating untrue allegations.         Similar to P&G’s
complaint against the Plaintiff, Amway’s complaint here
claims that the Appellees’ conduct cost Amway business and
No. 01-2561                           Amway Corp. v. Procter            11     12       Amway Corp. v. Procter                   No. 01-2561
                                        & Gamble Co., et al.                            & Gamble Co., et al.

Michigan Fair Reporting Privilege                                              and participated in the publication of the documents on
                                                                               Schwartz’s website—are not protected by the privilege.8
  Under the Michigan statute:
                                                                                 In support of its position, Amway cites Park v. Detroit Free
  Damages shall not be awarded in a libel action for the                       Press Co., 40 N.W. 731 (Mich. 1888), where the Michigan
  publication or broadcast of a fair and true report of                        Supreme Court said, “[i]f pleadings and other documents can
  matters of public record, a public and official proceeding,                  be published to the world by any one who gets access to
  or of a governmental notice, announcement, written or                        them, no more effectual way of doing malicious mischief with
  recorded report or record generally available to the                         impunity could be devised than filing papers containing false
  public, or act or action of a public body, or for a heading                  and scurrilous charges, and getting those printed as news.”
  of the report which is a fair and true headnote of the                       Id. at 734. The Park decision is consistent with the reporting
  report. This privilege shall not apply to a libel which is                   privilege contained in the Second Restatement of Torts.
  contained in a matter added by a person concerned in the                     Section 611 of the Second Restatement provides:
  publication or contained in the report of anything said or
  done at the time and place of the public and official                          The publication of defamatory matter concerning another
  proceeding or governmental notice, announcement,                               in a report of an official action or proceeding or of a
  written or recorded report or record generally available to                    meeting open to the public that deals with a matter of
  the public, or act or action of a public body, which was                       public concern is privileged if the report is accurate and
  not a part of the public and official proceeding or                            complete or a fair abridgement of the occurrence
  governmental notice, announcement, written or recorded                         reported.
  report or record generally available to the public, or act
  or action of a public body.                                                  RESTATEMENT (SECOND) OF TORTS § 611. This privilege,
                                                                               however, is not absolute. Similar to the court’s language in
MCLA § 600.2911(3).7 Amway does not dispute that, under                        Park, Comment c provides, in relevant part:
this law, a verbatim reproduction of a public court document
would be privileged. Rather, Amway argues that P&G and                           A person cannot confer this privilege upon himself by
Dinsmore—who created the complaint in the Texas litigation                       making the original defamatory publication himself and
                                                                                 then reporting to other people what he had stated. This is
                                                                                 true whether the original publication was privileged or
                                                                                 not. Nor may he confer the privilege upon a third person,
                                                                                 even a member of the communications media, by making
                                                                                 the original statement under a collusive arrangement with
    7
       First Amendment protections apply in a tortious interference action
                                                                                 that person for the purpose of conferring the privilege
when the action com plained of was defamatory speech. It is therefore            upon him.
consistent to apply the fair reporting privilege to a claim fo r torious
interference that is based upon defamato ry spee ch. See Meyer v. H ubb ell,
324 N.W.2d 139, 144 (Mich. App. 1982) (noting that in a claim for                   8
defamation, the absolute judicial pro ceed ing privilege wo uld also apply           For purp oses o f this argum ent, we assume the Defendants
to a related claim of tortious interferenc e).                                 “pub lished” the do cuments on Schw artz’s website.
No. 01-2561                    Amway Corp. v. Procter       13    14   Amway Corp. v. Procter                       No. 01-2561
                                 & Gamble Co., et al.                  & Gamble Co., et al.

RESTATEMENT (SECOND) OF TORTS § 611 cmt. c. If the                    Amway also turns to the grammatical structure of the
publication involves some form of judicial proceeding, there      statute. Specifically, Amway argues that the parallel use of
must be official action in the proceeding before one can          two “contained in” clauses separated by “or,” demonstrates
invoke the privilege:                                             two distinct categories that are in the disjunctive.
                                                                  Furthermore, Amway claims the clause “which was not part
  A report of a judicial proceeding implies that some             . . .” modifies the last antecedent and not the former. See Sun
  official action has been taken by the officer or body           Valley Foods Co. v. Ward, 596 N.W.2d 119, 123 (Mich.
  whose proceedings are thus reported. The publication,           1999) (“It is a general rule of grammar and of statutory
  therefore, of the contents of preliminary pleadings such        construction that a modifying word or clause is confined
  as a complaint or petition, before any judicial action has      solely to the last antecedent, unless a contrary intention
  been taken is not within the rule stated in this Section.       appears.”). Accordingly, under Amway’s interpretation, the
  An important reason for this position has been to prevent       Defendants cannot find protection under the fair reporting
  implementation of a scheme to file a complaint for the          privilege. We are not persuaded.
  purpose of establishing a privilege to publicize its
  content and then dropping the action. (See Comment c).            The exception to the privilege reads:
  It is not necessary, however, that a final disposition be
  made of the matter in question; it is enough that some            This privilege shall not apply to a libel which is
  judicial action has been taken so that, in the normal             contained in a matter added by a person concerned in the
  progress of the proceeding, a final decision will be              publication or contained in the report of anything said or
  rendered. So too, the fact that the proceedings are ex            done at the time and place of the public and official
  parte rather than inter partes is immaterial if the matter        proceeding or governmental notice, announcement,
  has come officially before the tribunal and action has            written or recorded report or record generally available to
  been taken in reference to it.                                    the public, or act or action of a public body, which was
                                                                    not a part of the public and official proceeding or
RESTATEMENT (SECOND) OF TORTS § 611 cmt. e (emphasis in             governmental notice, announcement, written or recorded
original). Although P&G did not withdraw its complaint in           report or record generally available to the public, or act
the Texas litigation after it was published on the website          or action of a public body.
(indeed, P&G appears to have pursued that action well
beyond the publication), Amway argues that Comment e still        MCLA § 600.2911(3). The statute excepts from the privilege
expresses a concern for the exact situation found in this case.   libels that are not a part of the public and official proceeding
Amway also relies upon a case from Illinois which applied         or governmental notice, written record or record generally
the same type of fair reporting privilege and invoked the         available to the public. These libels are of two kinds: (1) a
Second Restatement. In Kurczaba v. Pollock, 742 N.E.2d            libel which is “contained in a matter added by a person
425, 442-43 (Ill. App. Ct. 2000), the court held that the fair    concerned in the publication,” or (2) a libel which is
reporting privilege does not apply to a defendant who sought      “contained in the report of anything said or done at the time
to confer the privilege upon himself by filing a complaint and    and place of the public and official proceeding or
then “reporting” the complaint to others.                         governmental notice, announcement, written or recorded
                                                                  report or record generally available to the public, or act or
No. 01-2561                         Amway Corp. v. Procter          15     16    Amway Corp. v. Procter                        No. 01-2561
                                      & Gamble Co., et al.                       & Gamble Co., et al.

action of a public body.” Contrary to Amway’s belief, “or”                 information. Amway brings suit for injuries claimed under a
in this statutory section is used as a coordinating conjunction            state-created tort, but the state has seen fit to codify a general
to connect the two kinds of libel, see HARBRACE COLLEGE                    privilege and not to except from it the kind of conduct alleged
HANDBOOK 16 (John C. Hodges, et al. eds., rev. 12th ed.                    in this case. The state has not, contrary to Amway’s
1994) (coordinating conjunctions, including “or,” join two                 arguments, limited that privilege in a way that exposes the
clauses of equal grammatical rank); and both kinds of libel                Defendants to liability.
are plainly modified by the clause “which was not a part of
the public and official proceeding or governmental notice,                   Finally, we consider Amway’s reliance upon Park
announcement, written or recorded report or record generally               misplaced. Court filings were not public records in Michigan
available to the public, or act or action of a public body,” and           when Park was decided more than one hundred years ago.
both are plainly included in the exception. Assuming that                  See In re Midland Pub. Co., 362 N.W.2d 580, 586 (Mich.
any allegations in the Texas complaint or the Setzer                       1985) (noting that the decision in Park was premised on the
complaint—or both—were libelous, the libel was included in                 reasoning that pleadings in private actions were not public
the actual complaint and the Appellees did not add any                     records).
statements, let alone false statements, when they supposedly
published the complaint on the internet. Accordingly, we find                Accordingly, we hold that the conduct of P&G and
that Michigan’s fair reporting privilege applies to the                    Dinsmore was protected by the Michigan fair reporting
publication of the entire complaints on Schwartz’s website,                privilege, and on that basis, we affirm the judgment of the
and no exception to the privilege applies to the Appellees’                district court dismissing this action. Having thus decided, we
conduct complained of here.                                                decline to address the commercial speech issues argued by the
                                                                           parties.
  Because we find that the plain language of the statute
clearly directs our decision, we find no reason to consider the              Amway and P&G have each now prevailed against the
Second Restatement. See Rouch v. Enquirer & News of                        other at the appellate level in the federal courts. Although no
Battle Creek, 398 N.W.2d 245, 250 (Mich. 1986) (noting that                decision from this Court—or any other, we predict—will end
the Second Restatement is not helpful in interpreting                      the hatred these two corporate giants harbor for each other,
Michigan’s fair reporting statute).9 Generally speaking, a                 we hope that they will consider the impact of their continuing
party’s publication of any actual court filing or statement                legal battle on the scarce resources of the courts, and decide
made in a judicial proceeding is privileged because the public             to concentrate their creative talents on the more traditional
has a legitimate interest in accessing and viewing that type of            methods of gaining competitive advantage and declare a
                                                                           ceasefire in the judicial arena.
    9
      The Michigan legislature amended the fair rep orting statute
                                                                                                  CONCLUSION
following the state supreme court’s decision in Rouch, addressing what
the legislature felt was the supreme court’s too narrow definition of        For the foregoing reasons, we AFFIRM the judgment of the
“official proceeding.” See Northland Wheels Roller Skating Ctr. v.         district court.
Detroit Free P ress, 539 N.W.2d 774, 778 n.4 (Mich. App. Ct. 1995). T he
Michigan Supreme Court’s decision not to use the Second Restatement
remains applicable to our interpretation of the amended statute.
No. 01-2561                       Amway Corp. v. Procter     17    18       Amway Corp. v. Procter                            No. 01-2561
                                    & Gamble Co., et al.                    & Gamble Co., et al.

                    _____________________                            any publication is made involving such matters, they
                                                                     posses no privilege . . . .
                       CONCURRENCE
                    _____________________                          40 N.W. at 734.

   WILLIAM W SCHWARZER, Senior District Judge,                       The Park decision, an echo from a distant past, antedates
Concurring. The application of Michigan’s Fair Reporting           the adoption of § 600.2911, which clearly recognized the
Statute, Michigan Compiled Laws § 600.2911(3) (2003),1 to          public’s “rights to . . . information on private suits” when they
the facts of this case presents a question of first impression.    are filed. See In re Midland Publ’g Co., 317 N.W.2d 284,
Neither the Michigan Supreme Court nor any other court has         288 (Mich. 1982) (stating that “Michigan has long recognized
issued a reported decision on the issue before us: whether the     a common-law right to access to public records.”). Thus,
privilege applies to a party’s publication of a complaint it has   Park sheds no light on the scope of the statutory privilege.
filed in court. Our task is to predict how the Michigan
Supreme Court would decide the issue. Mills v. GAF Corp.,             As originally enacted in 1931, § 600.2911(c) protected only
20 F.3d 678, 681 (6th Cir. 1994).                                  reporters, editors, publishers, or proprietors of newspapers.2
                                                                   Rouch v. Enquirer & News of Battle Creek, 398 N.W.2d 245,
  In an early case, Park v. Detroit Free Press Co., 40 N.W.        248 (Mich. 1987). Following that decision, in 1988 the
731 (Mich. 1888), the Supreme Court addressed the validity         statute was amended to significantly enlarge its scope. See
of a statute which limited the liability of newspapers for         Northland Wheels Roller Skating Center, Inc. v. Detroit Free
publication of defamatory matter in the absence of bad faith       Press, Inc., 539 N.W.2d 774, 777 (Mich. App. 1995). Thus,
and upon a prompt retraction. In dictum, the court referred to     as amended, it no longer was limited to “public and official
testimony concerning the newspaper reporters’ difficulty in        proceeding[s]” but applied as well to reports of “matters of
getting access to the judges’ files and added:                     public record,” and its protection extended to anyone against
                                                                   whom damages might be awarded in a libel action for a
  One of the reasons why parties are privileged from suit          publication or broadcast, not simply members of the
  for accusations made in the pleadings is that the                newspaper trade. While pre-amendment the statute would
  pleadings are addressed to courts where the facts can be         have afforded no protection to defendants in this case, the
  fairly tried, and to no other readers. If pleadings and          amendment plainly protects them for publishing a fair and
  other documents can be published to the world by any             true report of a matter of public record.
  one who gets access to them, no more effectual way of
  doing malicious mischief with impunity could be devised            Amway contends nevertheless that defendants fall within
  than filing papers containing false and scurrilous charges,      the statute’s exception for libel “which is contained in a
  and getting those printed as news. The public have no
  rights to any information on private suits till they come
  up for public hearing or action in open court; and when               2
                                                                         It read, in relevant part: “No damages shall be awarded in any libel
                                                                   action brought against a reporter, editor, p ublisher, or proprietor o f a
   1
                                                                   newspaper for publication in it of a fair and true report of any public and
       Quoted at Op. 14, above.                                    official proceeding . . . .” Rouch, 398 N.W.2d at 248.
No. 01-2561                         Amway Corp. v. Procter               19   20        Amway Corp. v. Procter                          No. 01-2561
                                      & Gamble Co., et al.                              & Gamble Co., et al.

matter added by a person concerned in the publication.”3 It                   would eviscerate it. What the statute requires is that matters
argues that defendants authored the defamatory statements in                  of public record be reported fairly and truthfully, i.e., that the
the complaints and, having arranged for their dissemination                   report is not “so edited and deleted as to misrepresent the
on the internet, were persons concerned in their publication.                 proceeding and thus be misleading.” See Doe v. Doe, 941
It argues further that the qualifying clause, limiting the                    F.2d 280, 289 (5th Cir. 1991) (quoting R ESTATEMENT
exception to matter “which was not part of the public and                     (SECOND) OF TORTS § 611 cmt. f). So long as those
official proceeding” applies only to the second part of the                   conditions are met, motive is irrelevant. Stablein v. Schuster,
exception dealing with reports of official proceedings. The                   455 N.W.2d 315, 317 (Mich. App. 1990) (stating that “the
argument is unavailing. As the district court found, it was                   statute makes it clear that defendant’s motivation is irrelevant
undisputed that all the documents defendants provided and                     if a fair and true report is made of the proceeding.”).
that were published were publicly available court documents.
Dist. Ct. Op., Jt. App. 652. These documents were verbatim                       Amway further contends that defendants are excluded from
copies of what was in the court files, and thus they were                     the privilege under the RESTATEMENT (SECOND) OF TORTS.
“accurate reports of matters of public record.” Id. at 677, 680.              It cites § 611 comment c, which states that a person cannot
And all of the allegedly defamatory statements came from                      confer the privilege upon himself by making the original
these complaints in the court files. Id. at 652.                              defamatory publication himself and then reporting to other
                                                                              people what it had stated, even if the original publication was
   Amway contends that the publication of the complaints,                     privileged. It also cites comment e, stating that “[t]he
though accurate, did not qualify as a fair and true report                    publication . . . of the contents of preliminary pleadings such
because it failed to present Amway’s side of the matters                      as a complaint or petition, before any judicial action has been
alleged in the complaints. Moreover, Amway charges that                       taken is not within the rule stated in this Section.”4 The
defendants abused the privilege because they acted to further                 argument is inapposite. Defendants claim the fair reporting
their anti-Amway motives. The statute cannot be read to                       privilege under § 600.2911(3), not under the Restatement.
require the publisher to give equal time to opponents of what                 Moreover, because the Michigan statute and the Restatement
is in the public record. To make the reporting privilege                      are not coextensive, citation to the Restatement “is not helpful
conditional on a balanced presentation, as Amway argues,                      in [the court’s] effort to interpret the statute.” Rouch, 398
                                                                              N.W.2d at 250 (stating that the Restatement’s “official
                                                                              action” privilege is broader than the statute’s privilege to
   3                                                                          report “public and official proceedings.”).5
     The exception read s:
   This privilege shall not apply to a libel which is contained in a
   matter added by a person concerned in the publication or
   contained in the report of anything said or done at the time and
   place of the public and official proceeding or governmental
   notice, announcement, written or recorded repo rt or record                     4
   generally available to the public or act or action of a public                      Quoted at 13, above.
   bod y, which was not part of the public and official proceeding                 5
   or governmental notice, announcement, written or recorded                        For that reason, cases decided under the Restatem ent’s rule are not
   report or record generally available to the public or act or action        relevant. See, e.g., Kurczaba v. Pollock, 742 N.E .2d 2 45, 442-43 (Ill.
   of a public b ody.                                                         App. Ct. 2000 ).
No. 01-2561                         Amway Corp. v. Procter            21
                                      & Gamble Co., et al.

   Amway’s contention that the fair reporting privilege
protects only third parties is thus at odds with the plain
language of the statute and contrary to common sense.
Suppose the Wall Street Journal’s reporter copies a complaint
on file and then reports on it in a story. The privilege would
apply to him. But suppose that instead he writes his story on
the basis of the complaint given to him by the plaintiff after
it has been filed. The reporter would still be entitled to the
privilege. It makes no sense to extend it to him but to subject
the plaintiff to liability for giving him the complaint.6 Or
suppose the plaintiff, or perhaps her lawyer, is interviewed on
a news program and responds with a fair and true summary of
the complaint’s allegations. Surely it makes no sense to
interpret the statute so as to extend the privilege to the
interviewer but not to the interviewee.
   For these reasons, I join in the affirmance of the judgment.




    6
      See Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 239 (Tex.
App. 200 0) (stating that “[t]he harm resulting to a defamed party from
delivery of pleadings in a lawsuit to the news m edia could
dem onstratively be no greater than if the news media found the pleadings
on their own.”).
